by Peter Givler, Executive Director, AAUP
A Books That Matter Essay

Justifiable Homicide: Battered Women, Self Defense, and the Law,by Cynthia K. Gillespie (Ohio State University Press, 1990)

Before starting to work at AAUP, I was at Ohio State University Press, where we published a book that still stays in my mind. It was 1989 and the book was “Justifiable Homicide,” by Cynthia Gillespie, a lawyer and Executive Director of the Northwest Women’s Law Center, where she had worked extensively with women seeking refuge from abusive relationships. Her thesis in the book was simple and compellingly argued: because of the way the law had developed historically, battered women who killed their abusers were not permitted to plead self-defense, even though they believed they were in immediate danger of serious bodily harm. Deprived of a justifying defense, they were almost always convicted of murder.

Traditional self-defense law, Gillespie explained, assumes two men of roughly equal strength and ability, one of whom credibly threatens to kill the other. Unless he is defending his own home, the law obliges the person threatened to flee. If he kills his antagonist instead, to plead self-defense he would have to show that he was unable to get away—trapped between his assailant and the door, for example—or that he did try to flee, and his assailant pursued and continued to threaten him.

For women it was different. Self defense law did not recognize the right of a woman to defend herself, even in her home. Threatened, she should flee no matter what the circumstances. Courts were also extremely reluctant to allow potentially mitigating testimony by expert witnesses about battered woman’s syndrome, learned helplessness caused by repeated physical abuse at the hands of a spouse or domestic partner.

“The [traditional] law makes sense for what it was designed for—two men in a bar fight,” Gillespie once said, but not “for a woman trying to defend herself from a man who has threatened to kill her before.” In 1981 the Ohio Supreme Court had ruled that the syndrome had not been scientifically validated, and therefore that testimony about it was inadmissible.

Shortly after Justifiable Homicide was published, Dagmar Celeste, wife of then-Governor of Ohio Richard Celeste, gave her husband a copy of the book. He read it. He asked members of his staff to read it. His office then undertook a review of 105 cases of women in Ohio’s women’s prison, the Marysville Women’s Correctional Institute, many of them on death row, who had been convicted of murder in which battered women’s syndrome could have been a factor, if the court had allowed testimony about it.

On December 23, as he was leaving office, Governor Celeste granted clemency to 28 of those women:  24 were released, and the other 4 had to serve up to 2 more years in prison. On December 28, Andy Rooney, America’s lovable curmudgeon, wrote in The Columbus Dispatch that the Governor had just declared open season on Ohio husbands.[1]  The Ohio Attorney General vowed to re-prosecute.  Other responses were more humane.  In June the Ohio legislature passed a bill recognizing battered woman’s syndrome and the belief of imminent danger of harm as an element of self-defense.  Maryland Governor William Schaeffer commuted the sentences of 8 women, citing their inability to introduce evidence of abuse as a mitigating factor.  In the following two years 11 other governors either reduced or commuted sentences or granted clemency to women who had been similarly unable to introduce evidence of abuse at trial.[2]

In Ohio, a few months after the clemencies had been granted and the women released, Gillespie was invited to meet with shelter workers in Columbus, and to give a public talk.  There were 50 or 60 people in the audience: psychologists, social workers, lawyers.  Gillespie’s talk and the Q&A session that followed it were at a fairly high professional level: legal and regulatory considerations, psychological and safety issues, and so forth.  As things were winding down a woman sitting in the back of the room not far from me stood up and waited to be recognized.  “Ms. Gillespie,” she said, “I was one of those women on death row in Marysville.  I just wanted to say thank you.”  Then she left.

One of the persistent fears about allowing battered women to plead self-defense, as Rooney had so bluntly expressed it, was that it would allow them to get away with murder—and, implicitly, encourage them to kill again. The evidence has proved otherwise. A 2003 study of clemency for battered women[3] found that only two of the Ohio women granted clemency had been rearrested, one on property-related offenses and one on a drug charge. Their recidivism rate for violent crimes was zero.

Cynthia Gillespie died, of cancer, in 1993. Justifiable Homicide is now out of print.