Between the hammer and the anvil: Battered women claiming self-defense and a legislative proposal to amend section 3.04(2)(b) of the U.S. model penal code

Hava Dayan, Emanuel Gross

Research output: Contribution to journalArticlepeer-review


Despite the critical legal discourse that has taken place over the past thirty years in the United States regarding battered women who kill their assailing partner and the partial legislative reforms passed in individual states, no comprehensive and uniform legislative amendment has been proposed yet. Consequently, the American doctrine relating to battered women who act in selfdefense is inconsistent and incomplete. Such a legal structure precludes the provision of adequate and uniform legal justice for victims of domestic violence and leads to tragic legal consequences for battered women who defend themselves against their aggressors. This article seeks to translate the insights of the recent critical legal discourse on the issue of self-defense of battered women into a statutory amendment regarding the doctrine of self-defense in circumstances of domestic violence. The amendment proposed in this article is influenced by previous scholarly proposals that have not yet been the subject of detailed legislative drafting. The amendment is introduced into the legal framework of the American Law Institute’s Model Penal Code (“MPC”) because of the Code’s enormous influence in shaping state criminal codes in the United States. The legislative proposal offered contains unique criminological features pertaining to the nature of the phenomenon of battered women, tailored to the doctrine of self-defense and its legal requirements. The proposed amendment is also consistent with the current doctrine, which precisely and distinctly regulates the conditions for using deadly protective force, but also contemplates the expansion of the category of deadly protective force as it is currently formulated in Section 3.04(2)(b) of the MPC. The proposal creates a legal presumption that circumstances of severe and prolonged violence in the family poses a real danger to the victim’s body and life. In addition, it offers unique adjustments to the specific legal requirements (the duty to retreat and the duty to comply with the perpetrator’s demands) that, according to the MPC, victims of domestic violence must meet prior to using deadly protective force. If only to ensure legislative harmony, the amendment also suggests criminalizing acts of sexual violence committed against intimate female partners, acts which unfortunately are explicitly permitted under the current MPC. Although the amendment to the definition of sexual crimes might appear irrelevant to the issue of domestic violence, the amendment is in fact crucial to creating a properly rounded and just legal doctrine of self-defense in cases of battered women. In order to promote legal clarity and prevent arbitrary interpretations of the law by fact finders, a clear and explicit statutory legal arrangement should be promoted. Accordingly, this article will articulate a focused and detailed legislative proposal to amend the MPC. The hope is that this amendment can serve as a prototype for future legislative state reforms and eventually help to establish a suitable criminal doctrine for victims of domestic violence who kill their assailants in self-defense.

Original languageAmerican English
Pages (from-to)18-39
Number of pages22
JournalHarvard Journal on Legislation
Issue number1
StatePublished - 2015

All Science Journal Classification (ASJC) codes

  • Law


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