ABUSE EXCUSE
Description of efforts by some criminal defendants to negate criminal responsibility by showing that they could not tell right from wrong due to abuse by their spouses or parents. Although this defense is not specifically recognized in substantive CRIMINAL LAW, it has been used successfully in some cases to prove, for example, the INSANITY DEFENSE.
Using prior sexual or other physical abuse asevidence in a criminal defense is largely a resultof research regarding mental disorders caused by such abuse. Psychologists and otherresearchers have identified disorders, including post-traumatic stress disorder and battered woman syndrome, as causes for severe emotional instability that can lead to violent acts bythe victim against his or her abuser. Some writershave advocated more widespread use of suchevidence to mitigate the punishment of victimswho commit violent acts.
Other scholars and writers disagree, notingthat substantive criminal law does not recognizethe abuse excuse as a legitimate defense except insome limited circumstances, such as thoseinvolving the insanity defense. Harvard law professorALAN DERSHOWITZ coined the term in his1994 book, The Abuse Excuse, where he deemsthe studies regarding psychological disorderscaused by abuse as “psychobabble.” Dershowitzand other critics disagree not only with the useof abuse as mitigating evidence of criminalintent, but also with the results of the studiesthemselves. According to these critics, especiallyDershowitz, the abuse excuse fails to distinguishbetween the reasons why a person committed acrime and the responsibility for committing thecrime.
In a few high profile cases during the late1980s and 1990s, defendants sought to avoidcriminal responsibility for their crimes by introducingevidence of prior abuse. In 1989, Lyleand Erik Menendez, ages 21 and 18 respectively,brutally killed their parents in the family’s Californiahome. At their first trial for murder in1993, the brothers’ defense team introduced evidencethat the men’s father, Jose Menendez, hadsexually abused his sons for a number of years.Because of this abuse, Lyle and Eric, according tothe defense, killed their parents out of fear. Inraising the evidence of abuse, the defense soughtto reduce the conviction from murder to voluntaryMANSLAUGHTER. The defense won a victoryof sorts when the first trial ended in a hung jurybecause the jurors could not agree whether thebrothers were killers or whether they acted outdue to the years of alleged abuse they had suffered.In a second trial in 1995, however, the juryconvicted the brothers of first-degree murdernotwithstanding the evidence of abuse, and thejudge sentenced them to life in prison withoutthe possibility of PAROLE.
In 1993, Lorena Bobbitt was indicted formalicious wounding after cutting off her sleepinghusband’s penis during the middle of thenight. At her trial, her defense team introducedevidence of a history of sexual and physicalabuse committed by the husband, John, againstLorena. Unlike the Menendez case, where thedefense conceded that the brothers were criminallyresponsible for their actions, Lorena’sdefense team used the evidence to prove theinsanity defense. In 1994, a jury found her notguilty of the crime by reason of insanity.
Scholars have noted that the employment ofthe abuse excuse as a defense is more viable if itis used to prove insanity, which happened in theLorena Bobbitt case. Commentators have alsonoted that evidence of prior abuse, whether substantiatedor not, has been used in settings otherthan criminal defense. For instance, a wife mayaccuse a husband of SEXUAL ABUSE duringDIVORCE proceedings or an adult woman maysue her father for sexual abuse that allegedlyoccurred when the woman was a child.
FURTHER READINGS
Arenella, Peter. 1996. “Demystifying the Abuse Excuse: IsThere One?” Harvard Journal of Law and Public Policy19.
Becker, Mary E. 1998. “The Abuse Excuse and Patriarchal Narratives.” Northwestern University Law Review 92.
Wilson, James Q. 1997. Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? New York: Basic Books.
