Killing in Self Defense: The Legal Complexities of Abuse-Related Crimes and the Impact of Intimate Partner Violence on Women’s Criminal Convictions – Stanford Legal Podcast

Debbie Mukamal: We punish the women for not remembering the facts, as we showed one of the cases. So, what they tell law enforcement at the arrest stage, and then what they say at trial, might differ. And then what they might say to a parole board might differ even more. And we penalize them for their story not being straight. And their story isn’t straight because their brain’s damaged from the hitting and the choking that’s happened to them. So, we need to think about it differently.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan with Rich Ford. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available. Today we’re fortunate to be joined by our colleagues Debbie Mukamal, who is the executive director of the Stanford Criminal Justice Center and an expert on all things criminal, not a criminal herself. And we’re joined also by third-year student Jacqueline Lewittes, who was very involved, along with Debbie, in an absolutely fascinating project that they’re going to share with us today, and which some of you may already have read a bit about in The New York Times. So welcome to the show, Debbie. Welcome to the show, Jacqueline.

Debbie Mukamal and Thanks for having us.

Pam Karlan: Can you tell us a little bit about the origins of this particular project? You’ve done so many different empirical projects in the Criminal Justice Center here at Stanford. What led you to do this project?

Debbie Mukamal: Yeah, it’s a funny story, actually. Back in spring of 2020, when we, because of the pandemic, moved to online school, the Criminal Justice Center held a series of Zoom webinars on how the pandemic was affecting different parts of the criminal legal system: How jails and prisons were faring, how indigent defense was shaped by the pandemic. And one of the webinars we hosted was on the impacts of the pandemic on domestic violence, and one of our guests on that webinar was Rachel Louise Snyder, who’s a journalist and who wrote the book No Visible Bruises, and at some point in her remarks she said, “we don’t know how many women are in prison for killing their abusers.”

And the statement shocked my colleague David Sklansky and I, because although we know that the criminal legal system doesn’t keep good data, we thought that was pretty appalling. And so we called Rachel the next day and asked, “what do you mean that we don’t know how many women are in prison for killing their abusers?”

And she explained that there was no national data and that she had tried to get it at some point, but was unsuccessful. And there, and then we decided that we would try to do it ourselves. I don’t think we realized how hard the undertaking would be, but it led to a really good research project.

Pam Karlan: I understand your shock at that in a way. I would have been shocked as well. You would expect that would be the kind of thing that we know about. So you guys decided to try and figure this out in California, right?

Debbie Mukamal: Yeah, we would have gone with another state, I think, but California was a state that has a large prison population, a large number of women who are incarcerated, and we had relationships with the Department of Corrections here that made us believe that they may be more willing to entertain a study like this. Keep in mind we were asking to do a study of people who are in prison during COVID. And so there was hesitation, from any Department of Corrections, for anyone to come in. But I think our existing relationships with the Department of Corrections certainly helped us gain access.

Pam Karlan: And your center has been involved with the Department of Corrections in a variety of ways, stretching back to the realignment, right?

Debbie Mukamal: Yeah, actually, our former colleague, Joan Petersilia, had very good relationships with the Department of Corrections. At some point, I think was, before she was at Stanford, was, I think the term was an “embedded criminologist.” And when she was at UCI, she had research agreements with the Department of Corrections, and that’s extended absolutely to the work that our center does.

Pam Karlan: So can you tell us a little bit about the research design for this study that you all decided to do?

Debbie Mukamal: Yeah, so I’ll say that at first we thought we would, we were interested to answer the threshold question: How many women are in prison for killing their abusers? We reached out to advocates, to formerly incarcerated survivors, to criminologists, to people who work in the Department of Corrections, and we pretty quickly realized that the threshold question was actually too narrow. That if we were interested in understanding how intimate partner violence contributes to people landing in prison, that we needed it to be a larger question, because there were a lot of women in particular who were in prison for crimes stemming from intimate partner violence, but the decedent wasn’t the intimate partner.

The decedent could have been a child. The decedent could have been a family member or the decedent could have been a stranger. So we knew we needed to look at a larger group of people. So at a threshold level, wanted to look at people who were convicted of murder or manslaughter. So not just those convicted of murder or manslaughter of where the decedent was the intimate partner. Secondly, we had to figure out how were we going to get the information. We talked to people who thought at first we thought could we just come through court records? We figured that … we found out pretty quickly that wasn’t going to be an avenue we would do. And that we needed to go directly to the women themselves.

There again, we needed to figure out should we send them a survey by mail? Should we try to go in and meet with them in person? We were cautioned that sending in a mail-in survey, the women might not, might fear being completely candid for fear of Correction staff reviewing their mail. So most folks encouraged us to try to do an in-person survey if we could get permission to do so. And then the third major part of the protocol that we needed to figure out is like how are we going to assess whether or not someone had a history of intimate partner violence. And that’s when we met our colleague, Andrea Cimino, who’s a gender violence scholar, who had worked very closely with Jackie Campbell of Johns Hopkins University, who had developed the danger assessment. And the danger assessment is a validated instrument that predicts intimate partner homicide, the risk of someone being killed because of the intimate partner violence they’re experiencing. And so ….

Pam Karlan: That was the flip side in some ways of what you were wanting to figure out: which is that’s a scale that was designed to measure whether the woman in most of these cases was at risk of being killed.

Debbie Mukamal: Yes.

Pam Karlan: And so you were using that as a way to also think about whether she was likely…

Debbie Mukamal: How serious was the violence that the person was experiencing? And the other instrument that we ended up using was something called the Composite Abuse Scale that comes out of Canada, and it was an instrument that lets us figure out: was the person experiencing intimate partner violence? So instead of asking the question of respondents, “Were you a victim of intimate partner violence? Yes or no?” We asked them a series of 20 questions that got at whether or not they were experiencing physical violence, psychological violence, and sexual violence.

And depending on how they answered those questions, we could determine whether or not they were a victim of intimate partner violence. So those were all … and then I will just add one final thing about the protocol, which is that we decided to ask about just the last year. What was the kind of violence they were experiencing in the last year? We know that the population of people in prison have deep and long histories of trauma stemming to their childhood, but we were really interested in knowing was the violence current? Was it intimate partner violence that was happening around the time that the offense took place?

Rich Ford: And you’re talking only about women who themselves were the victims of intimate partner violence? Or are you also talking about women who may have been defending, for instance, children?

Debbie Mukamal: Oh, actually, what we found is that for many of the women, what they wrote about in their narratives was that their actions stemmed from protecting their children—that the violence that they endured, included violence that their children endured.

Rich Ford: I think I understand. So for instance, it would be a woman who is abused because she’s trying to protect her child from an abusive spouse or an abuse parent.

Debbie Mukamal: Yes. They were often these … their abusive partners were abusing both of them and threatening both of them. And that the women who … Among the women who, whose decedent was an abusive partner, they specifically talked about in their narratives that part of the reason for killing their intimate partner was that the intimate partner was either threatening and/or currently, had currently or most immediately done something to their child.

Pam Karlan: So Jacqueline, can you tell us a little bit about how you got involved in the project?

Jacqueline Lewittes: Yeah, so this was a policy lab that began last fall, and it was also offered to students who did in the fall and the winter. So, I applied to it just because of my interest in defense work, and this is a really understudied population that I hadn’t heard much research about. So luckily I was able to get into the policy lab. And then in the Fall quarter, we really focused on just mining the dataset because we had these open ended response questions that varied a lot in what they discussed. But we looked for emerging themes, working off of a code book that Debbie and Andrea developed before the class had started.

So by the end of the quarter, we had made some more codes and we had coded them ourselves and then coded them with a partner to make sure that they were reliable. And from there, we looked at what existing laws might address these themes and have researchers looked into these themes at all so that we could speak to it in a broader context. And we started to analyze that data and analyzing conversation with this literature in the winter, and then start to develop the report, which I continue to do in the Spring in the Summer.

Pam Karlan: So when you, once you got this data, what were the most striking or surprising findings that came out of the data.

Jacqueline Lewittes: What I found most surprising was the prevalence of decedent categories that weren’t just intimate partners. And I think that’s something that a lot of people came into this project thinking was going to be the main category. We saw a lot of strangers and specifically in those cases, what emerged was this pathway with substance use and substance abuse, that a lot of respondents use substances to cope with the experiences of intimate partner violence. And that often led to DUIs. And then in other cases when people were killed that were accidental killings or strangers and sometimes children, were when respondents were trying to flee their abusers.

So they were really doing a lot of what you would say is like the “right thing to do” or what their domestic violence counselors had said to do in some cases. But they had there was this one case where someone struck a light pole when her children were in the back of her car and she was and her daughter died as a result of that. So it’s really the widespread nature, I think, of abuse, how it’s not isolated to just an individual partnership there. And then also a lot of the ways that the criminal legal system, from start to finish, was failing these people, even though we have, a revised evidence law that permits evidence of intimate partner violence, it wasn’t being used reliably.

A lot of defense counsel or judges weren’t admitting the evidence, and it didn’t seem like that many actors, from police to prosecutors, judges, and defense counsel, knew exactly how to handle questions of intimate partner violence or were at all familiar with it, particularly for cases of traumatic brain injuries, which can change someone’s affect and disposition.

Pam Karlan: You’re kind of allusion to a couple of the cases where the case is a DUI, or the case is the woman struck the pole, suggests that the group of women that you’re talking about is actually a tip of a much larger iceberg because if she had been fleeing and she was driving under the influence and she hit somebody, but the person didn’t die, they wouldn’t have been in your population right? Because you’re looking at. cases where the woman is ultimately convicted of manslaughter or murder or the woman who has the kids in the backseat of the car, and one of them is severely injured, perhaps permanently, also wouldn’t appear in your data.

So, your data set is, if anything, an indicator of a much larger problem than simply women who kill as a result of intimate partner violence of some kind.

Debbie Mukamal: It’s a really important point, Pam, that you’re making, because it had to do with, at the threshold, we knew that if we cut it off at murder and manslaughter, that we were going to undercount the kind of problem, but we also understood that it was probably going to be much harder to try to get at those other cases.

Rich Ford: So you’ve given us some sense of the scope of this problem in the varied types of cases. Could you maybe give one or two concrete examples, just to give our listeners a sense of the kind of stories that you uncovered?

Jacqueline Lewittes: There was one that I remember coding that really stuck out to me and I think showed the shortcomings of self-defense law as we have it where I believe the respondent had extreme violent or extreme abuse in the year preceding the offense and she said she could only remember the day in three snapshots, one beginning with her being choked and her head being slammed down by her partner. And then the next one, she locked herself in the bathroom and was calling like a friend to try to seek help. And then the third snapshot, she was in a room that she shared with her child, and her partner was banging on the door, and she had seen on the floor his pocket knife, and then I don’t know, and I don’t know if the respondent knows how much time passed between that and the killing, but the next thing she said is that she had confronted her abuser who was laying down, I don’t know if he was asleep or not, and there was some conversation that she couldn’t remember, and the next thing she knows, he was dead. She stabbed him twice, not thinking that she would kill him. So there, it’s like the accumulation of, a long time of abuse, and then pretty soon, pretty close to the event, this abuse, but it’s not imminent, in the term that like self defense in criminal law would define it.

Rich Ford: Ah, and we don’t, or perhaps we don’t even know whether it was imminent because she can’t remember exactly when it happened.

Jacqueline Lewittes: Yeah. And as her response said, she had a choking incident right before, so that is indicative of a potential traumatic brain injury, which affects your memory and a lot of things that could also come up at trial, like your affect, your disposition.

Rich Ford: But so in that case, he wasn’t able to successfully amount to defense of self defense?

Debbie Mukamal: Yeah. Yeah. And she’s not alone. We met with 649 respondents over the course of our six days of data collection in the two women’s prisons, and 217 people told us that they had been choked or strangled or felt dizzy, confused, or blacked out after being choked. So that’s a third of our sample, which as Jacqueline has indicated, those are signs of potential traumatic brain injury.

I think it’s pretty shocking that we have, close to a third of, we might say, a third of the women who are in prison for murder or manslaughter, are potentially suffering from traumatic brain injury now–and certainly when they were moving through the criminal legal system. It’s something that are….we really need to be thinking about more closely.

Pam Karlan: So the women tell you their account of what happened. And these are the ones who are unsuccessful at raising defenses, in part. I think–Jacqueline, you were alluding to this– in part, because self defense is usually treated as somebody comes at you with a knife and you shoot them, or somebody comes at you with a and you stab them. And that tends not to be the pattern with women who kill their partners. There tends to be this sense that they can only do it when the partner is unaware or asleep or the like, because that’s the only time that they feel competent to defend themselves. Is that what’s going on?

Debbie Mukamal: Yeah, and it’s … I think part of the reason why we titled the study “Fatal Peril.” It  gets at this….there’s this accumulation of a belief that their life is in danger, right? From all these, there’s lots of threats, lots of times when they’re being hit. And it is the case they get to a point where some of them feel like they have to plan, or as Jacqueline’s mentioned, some of them plan to leave and then someone else gets killed.

Rich Ford: Could you give us a sense of how many, or what percentage of women currently in prison for homicide fall into this category, the category in which the homicides were in some way related to intimate partner violence?

Debbie Mukamal: Yeah. So what we found was is that 74 percent of the women of the respondents who participated in our study were experiencing intimate partner violence at the time that the offense took place. So nearly three quarters of the population.

Rich Ford: Wow. And but this falls into …there are a few different subcategories we might talk about. And could you tell us a little bit about that? Some of them are people who actually killed their abuser. Others fall into some other categories where the homicide was related to the abuse.

Debbie Mukamal: So the largest category of people were when the decedent was a stranger, and that included that DUI pipeline that Jacqueline alluded to earlier. The second largest category was where the decedent was an intimate partner. And that was about 20 percent of the cases. And the third largest category was where the decedent was a child. And that was about 14 and a half percent of the cases.

Rich Ford: And in the cases where the decedent was a child, those were cases where the abusive partner killed the child or the child died from neglect? Could you just tell us a little more about that category?

Debbie Mukamal: Sure. That category is very interesting and complex. It includes cases where the intimate partner was the party responsible for the killing, but where the woman was found liable under aiding and abetting statute called “failure to protect.” So failing to protect their child from the abuse and from the killing. But there were also cases where the woman, either in collaboration or in conjunction with the, with their abusive partner killed the child. Or we even had cases where we had at least four cases where what’s called a mercy or altruistic killing. So the woman talked about the abuse being so bad that they were going to kill themselves and take their child with them so as to avoid having the child to need to continue to live under that kind of abuse.

And in those cases, obviously they were successful in killing their child, but not successful in killing themselves.

Rich Ford: Oh, it’s horrifying. So we your study has a lot of data, but it really brings forth a variety of ways in which the criminal justice system has failed these women, beginning with the fact that it’s failed to protect them from the abuse in the first place. But could you tell us about where you see these failures and what you think could be improved?

Jacqueline Lewittes: Yeah, we saw really failures throughout, beginning with respondents who tried to seek a protective order and the court wouldn’t believe them and deny them a protective order, or they were too scared to go to court to even seek a protective order because of all the administrative delay and potential retaliation from their partner.

And then some people were mistreated by the police when they went either to report themselves if they had a codefendant type of situation, or they were scared to speak against their codefendant if they were an abuser. And then a lot of people talked about their defense attorneys either not bringing forth evidence, not investigating enough when they spoke about abuse. In some cases, actually saying if they spoke about abuse, that would show motive for the killing if it was the case of an intimate partner decedent. And then judges not admitting evidence or making disparaging remarks against them, which the prosecutors also did in some cases constructing narratives, which we saw a lot when it was one female defendant and several or just one or two male codefendants. She was seen as the mastermind when in often cases she was abused or coerced into the situation. And then finally at the sentencing phase– or not finally almost finally –at the sentencing phase these enhancements that got added on there are enhancements for gang affiliation for weapons for child abuse and then.

There are new reforms now to try to mitigate these sentences, but we haven’t found much data on the laws being used, these post conviction remedies, so that’s one of the things we’re trying to figure out now is if they’re being used and if they’re successfully being used and what roadblocks stand in the way.

So we have a roundtable coming up in November to get a lot of stakeholders together, try to find out what’s really happening on the ground and how to make things better.

Rich Ford: I see. So, there are some cases in which the law simply isn’t being applied appropriately and … or in which the women in question have gotten bad legal advice and haven’t asserted their defenses that they might be entitled to. But there are other areas where it sounds like we’re really in need of law reform. And maybe you could talk a little bit more about the potential for law reform and whether there are any examples of law reform that you think should be adopted more broadly?

Debbie Mukamal: Yeah. One area that is really sort of interesting to think about is just our homicide statutes, our homicide liability. And we’ve talked a little bit about right now that under a self defense statute, you would need to show imminence, that the threat was imminent. And yet with these women, it’s often not imminent in the way the law wants it to be. So, there’s discussion in the community, in the law community, in the legal community that thinks about these issues, about whether or not there should be criminalized survival homicide statute that tries to think about the realistic place that these women are in, still finds them culpable, but that also accounts for the fact that there might not be imminence that a self-defense statute requires.

Rich Ford: I remember for a while people talked about battered woman syndrome. It’s kind an antiquated term for this, but there seems to, it seems to be a similar idea.

Debbie Mukamal: Yeah, exactly. I think the other area of reform that we really need to start thinking about is traumatic brain injury and just how to accommodate for the fact that –and I don’t know the answer–and as Jacqueline said, we are bringing a diverse group of stakeholders together in California to really tease through these issues and see if we can’t come up with concrete solutions. And we have a group of students who are working alongside us this quarter in a policy lab to do that. But the traumatic brain injury issues are really significant. And I think that as a system, we need to think about how do we accommodate for traumatic brain injury, both as people are working through the system, but then even when women are incarcerated: what kind of medical care are we providing for them?

Pam Karlan: Can I ask a question about that? Because something you alluded to, and I think I just want to highlight it for our listeners, and then ask a question about it, is that for some of these kinds of cases, you’re not arguing that the person isn’t guilty of doing anything wrong. What you’re really arguing is that they shouldn’t be found guilty of homicide or of murder. There should be some sort of lesser offense with a lesser penalty. And I want to ask you about that with regard to the traumatic brain injury: is the idea there that because of the traumatic brain injury, they’re unable to control their impulses? Or is it that they’re unable to form the requisite mens rea, the requisite state of mind for being guilty of murder? What’s the relationship between the traumatic brain injury and their culpability, their guilt?

Debbie Mukamal: I think it could be both of those things. And then it’s just, we punish the women for not remembering the facts, as we showed in one of the cases. So what they tell the law, what they tell law enforcement at the arrest stage and then what they say at trial might differ. And then what they might say to a parole board might differ even more. And we penalize them for their story not being straight. And their story isn’t straight because their brain’s damaged from the hitting and the choking that’s happened to them. And so we need to think about it differently.

Rich Ford: And so that’s the type of reform that could, probably should, go far, even beyond this category of defense victims that anyone who has traumatic brain injury might have, not have their story consistent in that way. Are there any examples of law reform elsewhere that you think would be worth emulating?

Debbie Mukamal: Yeah, we have, there are a number of states that are passing laws looking at re-sentencing for these kinds of cases or accelerated commutation for people who have histories of abuse. Just this afternoon, I was on the phone with one of our graduates, John Butler, who is the New Jersey Governor’s … one of his advisors on criminal justice policymaking, and they have a new executive order there that’s fast-tracking commutations for people who have histories of duress and coercion and abuse. And, they were … his team was on the phone with us to really think through how might you think about this particular group of cases, and what kinds of policies and procedures and standards should be in place should you be using what assessments are available, and that kind of thing. So it’s exciting to see how our study might be helping to shape some policy and certainly even more exciting to see that some of our graduates are working on it.

Pam Karlan: We will look forward to hearing from you again perhaps after your round table and then as you go into the solution phase. But this is tremendously exciting and important work. Jacqueline, I just want to ask you as a kind of last question, what you take away from this kind of going forward in your legal career?

Jacqueline Lewittes: I think we need to be listening to stories more, I think, of the people who get wrapped up in the legal system in general, but especially the criminal legal system. As someone who wants to be a public defender, hearing a lot of people say that their counsel didn’t listen to them was so disheartening, and that they didn’t really get their day in court felt very unfair in a lot of ways. So I’m hoping that this report starts to make us take a lot of people much more seriously.

Pam Karlan: Thanks so much. Thank you to our guests Debbie Mukamal and Jacqueline Lewittes. This is Stanford Legal. If you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us to improve and it’ll get new listeners to discover the show.

I’m Pam Karlan along with Rich Ford. See you next time.