Self-defense laws in every state are designed to help protect would-be victims of assault from prosecution. They grant immunity to people who hurt or kill an attacker in an effort to protect themselves. But self-defense laws traditionally state you must attempt to retreat prior to using force against an attacker, whereas newer Stand Your Ground laws do not.
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As of January 2020, 26 states had adopted Stand Your Ground laws, according to nonprofit research organization, the RAND Corporation. These types of laws, which are different in every state, all basically saying that would-be victims may use force, including lethal force, to protect themselves from death or great bodily harm in any place they are lawfully allowed to be without first needing to attempt to flee the situation. In other words, Stand Your Ground laws should protect you from prosecution if you injure or kill an abuser as long as you acted in fear for your life or personal safety. Unfortunately, that’s not been true historically, says John Roman, senior fellow at NORC at the University of Chicago and crime justice scholar.
“In states with no Stand Your Ground law, women are less likely to be ruled to be acting in self-defense than men, while in states with a Stand Your Ground law, they’re equally likely to be found to be justified,” Roman says. “But it happens in only one particular set of circumstances. For a woman who kills a man who’s a stranger, then her odds of that being found to be justified go way up in Stand Your Ground law states. For a woman who kills an intimate partner, Stand Your Ground does very little to help her chances of being found to be acting in self-defense.”
Roman says the reason for the disparity is two-fold. The first is that Stand Your Ground laws weren’t written with victims of domestic violence—or anyone in particular for that matter—in mind.
“Stand Your Ground laws are terrible,” he says. “They’re bad policy because they didn’t have a clear objective. They all got passed in a big rush, and at no point was there public debate about what problem these laws were supposed to solve.”
As such, only a handful of states’ Stand Your Ground laws specifically call out domestic violence, and many of those still require a victim to retreat prior to using force in self-defense.
The second issue, Roman says, is bias against women in the judicial system. Theresa Viera, family law attorney with Sodoma Law in North Carolina, agrees.
“I can say pretty confidently that Stand Your Ground laws have been widely biased against women. Unfortunately, you still see—and I’ve seen this in court—some judges who don’t necessarily see domestic violence as a real legal issue because it’s an issue that is ‘behind closed doors,’ and it’s not for the courts or the law to intervene,” she says. “And so, if a woman then tries to defend herself against an act that’s not seen as a crime and it results in a death, then you have an issue.”
What Needs to Happen
In order for survivors of domestic violence who injure or kill an abuser in self-defense to be treated justly, legislators need to address the ambiguity in many Stand Your Ground laws.
“If the objective is to help the people who are found to be guilty when they act in self-defense, then the obvious place to start is to figure out who those people are who are the victims of miscarriage of justice and write laws that protect them,” Roman says. “So, if we were to actually do this analysis and figure out who is being convicted of a crime that they didn’t commit—that they acted in self-defense—I think what we would see is that many, many of the people who are being wrongly convicted are women in domestic incidents.”
And, of course, gender bias throughout the justice system would need to be addressed. Roman says one way to do this is to allow past incidents to be brought up in court.
“We need to be able to process past incidents as part of the decision-making about this incident, and that’s a big problem throughout the court system,” he says. “So, if I’ve gone to the hospital six times, that’s not admissible in determining whether I acted appropriately in this incident, and we need to rethink that.”
Funding is another issue, Roman says.
“The system just doesn’t value the resources to fight [domestic violence] proportionate to the harms that are experienced by the victims,” he says. “It doesn’t even come close; it’s not even in the ballpark. It’s hard to think of another crime that has such disproportionately small resources in response to the harms from the injuries.”
Viera also stresses the importance of widespread training on domestic violence.
“In terms of domestic violence and how it’s treated in a day-to-day court process, there needs to be better training—for law enforcement, judges, attorneys, everyone,” she says. (See “New Book for Attorneys, Judges on Protecting Survivors” for more information on how one group of people is trying to do just that.)
What Survivors Need to Know
There’s no doubt about it, a woman has a tough road ahead when it comes to justifying the use of force when acting in self-defense against an abuser.
“We’re certainly sending the message that the justice system isn’t going to be supportive of you if you claim to be acting in self-defense against an intimate partner,” Roman says. “That is certainly the message.”
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In most, but not all cases of domestic violence, the abuser is bigger and stronger than their victim. Self-defense laws and rules typically require that the victim wait until they are physically attacked before they can use self-defense. Survivors, who often pay very close attention to the actions and behaviors of an abuser, recognize when they are in danger. It might be words, a tone of voice, body language or gestures, but many survivors know an abuser is about to harm them. Some save their lives by attacking first, but since they attack before the abuser did, there is little to no chance in claiming self-defense, and a survivor can be convicted of assault or homicide. In other words, advocates warn, a survivor often faces the heartbreaking choice between committing what will be judged as murder or being killed by an abuser.
Still, that doesn’t mean a survivor shouldn’t protect themself or, when possible, take the necessary steps to leave an abuser before needing to protect themself against a physical assault. It is hard to know when violence may occur, but experts routinely say that emotional and other forms of nonphysical violence are precursors to physical or deadly violence, and that abuse almost always escalates over time.
Should you find yourself in legal trouble for defending yourself against an abuser, make it a priority to find an attorney who has experience in domestic violence.
“I like to put it this way: either an attorney gets it, or they don’t,” Viera says. “And I know it’s hard for domestic violence survivors to know the difference, but I would advise survivors to ask their attorneys, ‘Are you familiar with the Power and Control Wheel?’ And if the attorney says no, then that prospective client needs to move on to a different attorney.”
Read more advice on looking for a lawyer as a domestic violence survivor.
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