Cardozo Law Review
Abstract
A significant number of women who are incarcerated in American prisons for homicide offenses have been subjected to various forms of domestic abuse, including physical, sexual, and psychological abuse. This Article coins the term “survival homicide” to refer to cases where survivors of substantial and repeated domestic abuse kill abusive intimate partners or other abusive family members in circumstances where the abuse significantly contributed to their act. Abuse survivors are often prosecuted for murder and are over-punished by the criminal legal system.
Existing legal frameworks underlying survival homicide rest on exercising considerable discretion by various institutional actors, including prosecutors, juries, and sentencing judges, resulting in inconsistent outcomes. Since the law does not recognize a separate defense to mitigate survival homicide defendants’ criminal responsibility, they can only raise general self-defense claims. Yet, domestic abuse survivors often fail to prevail on self-defense grounds when the deceased did not pose an imminent threat of deadly force at the time of the killing. Existing sentencing mitigation models provide only a partial solution to survival homicide defendants. While judges have the discretion to consider past abuse as a mitigating factor at the penalty phase, survivors’ sentences are not only excessive and unduly harsh, but also carry a host of collateral consequences.
This Article’s main thesis is that survival homicide should be treated under a mitigated criminal responsibility model instead of existing sentencing mitigation models. Its argument is twofold: First, it posits that domestic abuse survivors’ criminal responsibility should be relative and shared with states’ responsibility for failing to take adequate measures to prevent domestic abuse and support survivors. Second, it argues that survivors’ culpability is lower when they kill abusive family members out of fear and survival motives and therefore their criminal responsibility should be mitigated. To reflect survivors’ comparative responsibility, this Article proposes that state legislatures pass a designated homicide offense, titled “survival homicide,” for prosecuting domestic abuse survivors. Survival homicide would be graded lower than manslaughter, carry a non-carceral penalty, and not trigger any collateral consequences.
This Article makes three contributions to the literature. First, it decouples the law’s treatment of survival homicide from self-defense’s restrictive elements. A specialized offense for survival homicide shifts away from problematic excusatory defenses toward a mitigated responsibility offense. Second, it challenges three of criminal law’s conventional wisdoms: that mitigating factors should not be considered at the guilt phase of the trial but be relegated to the penalty phase, that defendants’ motives do not affect their criminal responsibility, and that mercy has no role for determining criminal liability. Third, it opens the door toward using survival homicide as a case study for recognizing additional forms of prior abuse beyond the domestic setting that contribute to offending by revising definitions of other core crimes committed by abuse survivors.
Keywords
Air and Space Law, Domestic Violence, Marriage and Couples, Gender and the Law, Violence, Crimes Against the Person
Disciplines
Air and Space Law | Law | Law and Gender
Recommended Citation
Michal Buchhandler-Raphael,
Survival Homicide,
44
Cardozo L. Rev.
1673
(2023).
Available at:
https://larc.cardozo.yu.edu/clr/vol44/iss5/2
