What kind of message should the law send when it comes to a woman who kills a man who has been abusing, assaulting, or threatening her?

“I think it is important that we send the right moral message in the law,” Joshua Dressler, a respected authority on criminal law and procedure said in a lecture at the Marquette University Law School. 

In the annual Barrock Lecture at the Law School last week, Dressler said that even as some feminists advocate for expanding what is justifiable under the label of self-defense, the law should proceed cautiously. 

“Any attempt to expand the use of deadly force is something about which we should have considerable concern,” said Dressler, the Frank R. Strong Chair in Law at the Ohio State University Moritz College of Law. 

Describing himself as a feminist, Dressler said there were different approaches to the issue among people who understand the need for the law to allow women to defend themselves effectively from those attacking them.

But he said he had concerns with some who, saying they are feminists, argue for broadening the law involving battered women to beyond traditional concepts of self-defense. Some go too far, he said.

The traditional view of self-defense requires that lethal force be used only in situations where there is a deadly attack or imminent threat of one and where no other option, such as fleeing, is realistic.

Dressler said some feminists contend that this view is based on “a code of acceptable manly behavior” that does not fit well with the circumstances of some women, such as those who are victimized by chronic domestic abuse. He said some say the law plays by “boy’s rules” when it comes to self-defense, a claim he considered exaggerated.

Some states have expanded laws of self-defense, such as Florida, which has a law that some call the “make my day” law, Dressler said. Florida allows a person to meet force with force as long as the person reasonably thinks it is necessary. One provision of the law states the presumption that killing is justifiable when the person killed was violating a restraining order aimed at protecting the person who committed the violence.

Dressler said in some states, the “castle doctrine,” which holds that you don’t need to retreat or attempt to flee when you are attacked in your own home, has been expanded to apply outside the home. “The castle defense has come to the public arena,” he said. He described the change as “an NRA victory disguised in feminist rhetoric.”

Dressler described the 1985 case of a North Carolina woman, Judy Norman, who killed her husband, an alcoholic with a long history of violence against her, while he was asleep. Some argued that, even though the husband was asleep and no threat at the moment, the woman was justified because of the lengthy and extreme history of abuse and the ineffective response of police in previous situations.

But Dressler said he does not find self defense an acceptable argument in such a case unless you think a reasonable person can fail to understand reality, including that an unarmed sleeping man is not an imminent threat. “The practical effect actually is to pathologize the woman,” he said.

Dressler pointed to provisions in the Model Penal Code as a good route for states to take. The code sets a standard for self-defense based on what is “immediately necessary on the present occasion.” Dressler called this a sensible approach.

The professor also suggested applying what he called “a duress defense.” The principle is to determine whether a person of reasonable mental firmness would be inclined, after being coerced by the threat level and circumstances, to do something wrong, such as killing a person who may not be presenting an immediate threat. The argument would not be that the woman was driven to act by insanity, but by being “all too human,” Dressler said. Judy Norman might have been excused from what she did based on the duress she was under, he said.

What’s the difference between that and the argument that she was justified in her actions?

It’s the message, Dressler said. He said he would rather the law say something was wrong but understandable than say the same act was right.