I. Introduction
The granting of clemency to incarcerated battered women has become a relatively common practice in the United States.1 Such grants of clemency often occur where evidence of battered women's syndrome was not, for whatever reason, available to the convicted woman at her trial.2 As the use of battered child syndrome evidence to establish self-defense in homicide trials begins to gain acceptance among scholars and state courts, it is now equally appropriate to review the lengthy sentences commonly imposed upon those children and young adults driven to violence after enduring years of severe abuse, and to extend the same clemency to them.
In making the case for grants of clemency to battered children convicted and imprisoned for the killing of their abusive parents, some of the immensely complex social and legal problems posed by child abuse and parricide will be briefly examined. This work also includes a short description of the typical abused child parricide defendant. The merits of battered child syndrome evidence in homicide trials, used either as a legal justification or as a legal excuse, will then be discussed. In order to remedy past injustices, a proposal for the use of the executive clemency power to reduce the sentences of battered children currently imprisoned will be made. Finally, in order to demonstrate that these proposed grants of clemency are justified and supported by previous practice, two Missouri homicide cases will be directly compared: the first that of a battered adult woman who was convicted, sentenced, and subsequently granted clemency; and the second that of a convicted abused-child parricide.
II. The Typical Parricide
Parricide,3 the crime of murdering one's own parents, is viewed with a special horror in western societies. From Greek tragedy to the plays of Shakespeare, parricide has long been portrayed as the most unforgivable and loathsome of all crimes.4 Parricide violates one of the most basic laws of human society5 and has commonly been punished very severely. In the popular mind, the parricide is seen as uniquely evil or criminally insane.6 The perceived depravity of crime and criminal has repelled and fascinated millions throughout history; some of the most notorious and legendary American trials have been those of accused parricides.7 Yet the realities of parricide are far more complicated then they appear to the casual observer, and, despite the wide publicity such incidents typically receive, parricides actually represent only a small percentage of the total homicides reported in the United States each year.8
The limited number of professional studies9 performed on parricide offenders indicate "that parricide is committed by three types of individuals: (1) the severely abused child who is pushed beyond his or her limits, (2) the severely mentally ill child, and (3) the dangerously antisocial child."10 This work deals only with the first type, or what some scholars consider to be the typical abused-child parricide. These scholars believe that most parricides are committed by young people who have suffered severe, long-term abuse at the hands of the homicide victim.11 The abuse suffered by an abused-child parricide can take the form of any combination of verbal, physical, emotional, or sexual abuse.12
On average, slightly more than 300 parents are slain by their children each year in the United States,13 and parricide has accounted for between one and one-half percent to two and one-half percent of all homicides in the United States since the year 1976.14 Studies reveal that white middle or upper-middle class males of approximately 16 to 18 years of age commit the majority of parricides.15 Fathers are the most frequent victims.16 Most accused parricides have no prior history of delinquency or violence.17 The exact number of parricides committed by abused children, compared to those committed by children who were not abused, is difficult to determine. "Most of the professional literature on the subject consists of case studies and analyses of small samples of convenience -- generally cases of perpetrators evaluated and/or treated by the author, who is usually a psychologist or psychiatrist."18 Paul Mones, a defense lawyer and author who has specialized in defending children accused of murdering their parents, believes that more than 90 percent of parricides are committed by children who have been severely abused.19
Acquaintances of many accused abused-child parricides later describe them as having appeared to be "exemplary" youngsters, "submissive and peaceful, posing no threat to other members of society at large."20 Abused-child parricide offenders are usually found to have been average to above-average students in school.21 The abused-child parricide frequently appears to have enjoyed close relationships with the slain parent.22 But despite outward appearances of devotion and normality, an abused child's life at home is often terrifying and chaotic. "Battered children live in an environment where severe abuse is frequent and occurs randomly with or without warning."23 An abusive parent tends to be obsessed with keeping control of his or her children, seeing them as existing merely to satisfy the parent's needs and possessing no real independent identity.24 Abusive families tend to be secretive. "The family often isolates itself from outsiders who could detect abuse or render emotional and financial support."25 The battered child also tends to be silent about his or her individual situation. "Battered children withdraw and suppress their emotions, both in the dangerous environment of the home, and outside the home."26 Often the child has not only been the victim of violence within his or her household, but has frequently been forced to witness acts of violence against his or her other parent and/or siblings.27 The abuse suffered by many abused-child parricide offenders is often later discovered to have been known, or at least suspected, by the child's other relatives, neighbors, or even by child-protection authorities.28 Many abused-child parricides suffer from depression and blame themselves for the abuse.29 Many consider or even attempt suicide.30 Escaping a violent household is all but impossible for most abused children, as they rarely have access to the resources that would permit them to survive away from home or simply cannot break the emotional bonds that still remain between themselves and their abusive parent.31 A runaway child is usually returned home, and many children never even attempt to flee, believing that they cannot leave other loved ones alone in the household with the abuser.32
Parricides are typically committed in a manner that easily meets the legal definitions of first-degree murder.33 The killing is commonly premeditated.34 The parent is "almost always" slain in situations where a child is not immediately threatened and the parent has no opportunity to defend against attack.35 The killing often appears to have been done in a most savage fashion, and only rarely "is the parent killed with one clean shot; rather the parent is often shot, clubbed, or stabbed numerous times."36 Afterwards, many parricides try to deny and cover up the killing, but later confess.37
Parricide is usually the end result of a pattern of escalating violence. After long exposure to of threats, beatings, or other types of severe abuse, the abused child begins to see his or her life "to be in 'mortal danger.'"38 Any changes made in the tense "routine" of a violent household by the abuser may be seen by an abused child as a new and severe threat. "Triggering events usually precede the killing about six months prior to the event. The child is overwhelmed with a feeling of helplessness and is unable to perceive any alternative other than murder to escape the situation."39 The abused child comes to believe that these changing circumstances call for desperate action, and sees no other realistic means of escaping further abuse than to take the life of the abuser. The killing usually takes place at this point "in some combination of fear, revenge, or [at least perceived] self-defense."40
The characteristics of a typical parricide outlined above by no means exhaust the possible circumstances surrounding abused-child parricide incidents, but it does serve to describe many of their most salient features. Although these circumstances make it extremely difficult to do successfully, defense counsels for accused parricides often seek to admit expert battering syndrome evidence at trial in order to demonstrate that the parricide acted in self-defense. A closer examination of battered child syndrome and a direct comparison to the more-familiar battered woman's syndrome will help shed light on the dynamics of abusive relationships that lead to homicide.
III. The Battered Child Syndrome
C. Henry Kempe, M.D., first used the term battered child syndrome in 1962 to describe the pattern of physical injuries inflicted upon children by abusive parents.41 Battered child syndrome has long been used to prosecute child abusers, but unlike the related phenomenon of battered woman syndrome, its acceptance as evidence demonstrating that a homicide defendant acted in self-defense is severely limited.42 The theory developed to explain the effects of battered woman's syndrome is "the original model for the battering syndromes,"43 and despite important differences between the response of adult women and that of children to exposure to chronic violence, researchers have noted that "the resulting physical and psychological manifestations [observed in battered women and battered children] are parallel."44 It will, therefore, be useful to make a closer examination of battered woman's syndrome.
Dr. Lenore E. A. Walker is acknowledged as the leading expert on battered woman's syndrome. She introduced the term in the 1970s to describe "the measurable psychological changes that occur after exposure to repeated abuse."45 Dr. Walker states that "Battered Woman Syndrome is considered a sub-category of the generic Post-Traumatic Stress Disorder . . . ."46 Post-traumatic stress disorder "is a collection of thoughts, feelings, and actions that logically follow a frightening experience that one expects could be repeated."47 Three major "symptom clusters" are measured in order to determine whether a trauma victim has developed a PTSD.48 These are "cognitive disturbances, high arousal symptoms, and high avoidance symptoms."49 Post-traumatic stress disorder (PTSD) has been recognized for some time, but it has "only recently been used to describe the psychological impact of trauma."50
From her research of the lives of numerous battered women, Dr. Walker has created a model of the dynamics of a violent household, beginning with her "Cycle Theory of Violence."51 This theory holds that there are three phases in a cycle of abuse: Phase I is a period of tension-building, Phase II is an acute battering incident, and Phase III is a period of loving-contrition or absence of tension.52 Dr. Walker believes that where such violence has reached dangerous proportions all or most of the time, Phase III is not readily visible, and, although there is some lessening of the tension, the victim never feels safe.53 Long exposure to this cycle leads to what Dr. Walker has called "Learned Helplessness."54 "Learned Helplessness" attempts to explain why an apparently normal person loses his or her ability to predict how their actions will affect their safety.55 This theory is based on research with animals and people who have been exposed to "random and variable aversive stimulation."56 Dr. Walker believes this exposure had the effect of producing in the subjects "a laboratory version of PTSD."57 Such random stimulation, which the subjects were powerless to control by any direct or indirect means, created in the subjects a "condition of non-contingency between response and outcome which taught the participants not to trust in their own natural responses when under threat of danger."58 Despite the development of a PTSD in some victims of chronic violence, Dr. Walker cautions that "battered women who kill are not different from those who do not kill. All of the differences have been found in the frequency and severity of violence committed by the batterer."59
As in the case of battered woman's syndrome, researchers dealing with battered children have found that child abuse victims also develop a PTSD60 and a state of heightened environmental awareness.61 Battered children frequently develop a "pervasive sense of helplessness that results from feeling trapped in a situation from which they cannot escape."62 A battered child's exposure to long-term abuse has been theorized to cause the child to "develop a characteristic known as hypervigilence."63 A child suffering from this induced state of "hypervigilence" develops a painfully intense awareness of his or her environment, and remains always on the alert for danger.64 Events to which a non-abused child may pay no heed take on frightening significance for the abused child.65 Subtle changes in the behavior of the abuser can cause the abused child to fear imminent violence.66 The abused child's "special perceptions" may demonstrate why the child suddenly "reacts violently in a nonconfrontational situation, even though in past seemingly more threatening situations he or she never acted."67
Without the admission of battered child syndrome evidence, a parricide defendant has little hope of demonstrating to a jury that his or her actions were in self-defense.68 Yet, as previously stated, battered child syndrome has enjoyed little acceptance in state courts,69 despite its close parallels to the now widely-accepted battered woman's syndrome. Examination of the legal issues surrounding the admission or exclusion of battering syndrome evidence in homicide trials, with the emphasis on Missouri practice, will serve to illustrate the problems faced by parricide defendants attempting to establish that they acted in self-defense.
IV. Legal Considerations in Seeking the Admission of Battering Syndrome Evidence in Homicide Trials
Several states have adopted statutes allowing the admission of battering evidence in homicide trials when defendants attempt to establish self-defense.70 Missouri's statute is typical of these. Section 563.033.1, RSMo 1994, provides that "[e]vidence that the actor was suffering from the battered spouse syndrome shall be admissible upon the issue of whether the actor lawfully acted in self-defense or defense of another."71 Although this statute is "gender-neutral," its language is "age- and situation-specific" and excludes children from its coverage.72 Before a homicide defendant in a Missouri court may seek the admission of expert testimony on battered spouse syndrome under § 563.033, RSMo 1994, the defendant must properly raise the issue of self-defense.73
Missouri's law of self-defense, codified at § 563.031, RSMo 1994, says that a person may legally "use physical force upon another person when and to the extent he reasonably believes such foce to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent [emphasis added] use of unlawful force by such other person . . . ."74 But Missouri case law requires a homicide defendant to show that he or she feared an immediate threat from the victim in order to be entitled to a jury instruction on self-defense. In a ruling interpreting the language of § 563.031, RSMo 1994, the Supreme Court of Missouri held in State v. Weems, that a four-element test must be met by defendants seeking to inject the issue of self-defense into a homicide trial. These four elements the Court found are:
(1) [A]n absence of aggression or provocation on the part of the defender, (2) a real or apparently real necessity for the defender to kill in order to save himself from an immediate [emphasis added] danger of serious bodily injury or death, (3) a reasonable cause for the defender's belief in such necessity, and (4) an attempt by the defender to do all within his power consistent with his personal safety to avoid the danger and the need to take a life.75
In order to be entitled to a jury instruction on self-defense, the issue must be supported by the evidence, and this evidence must be "viewed in the light most favorable to the defendant."76 The Weems court held that the "quantum of proof" necessary for finding that a self-defense instruction is warranted may be defined as "substantial evidence"; "evidence putting it in issue"; "any theory of innocence . . . however improbable that theory may seem, so long as the most favorable construction of the evidence supports it"; "supported by the evidence"; "any theory of the case which his evidence tended to establish"; "established defense"; or as "evidence to support the theory."77
Missouri case law has held that a woman attempting to use evidence of battered spouse syndrome need not have been married to the alleged batterer. In State v. Williams, the court held that "[t]o the degree that her 'battered syndrome' constitutes a consideration in a self-defense defense claim it applies equally whether [the battered woman] is married or not."78 The court further ruled:
[that] if the evidence of [battered spouse] syndrome is to have any meaning under Sec. 563.033 it must be as a modification of the mental state required of the battered woman. More accurately stated it is that the syndrome creates a perception in the battered woman so that as to her the required elements [of the self-defense standard] have been met.79
This ruling allows evidence of the battered spouse syndrome itself to be used to strengthen a defendant's "prima facie showing of self-defense sufficiently to merit a self-defense instruction to the jury."80 But the Williams court identifies an important limitation to this ruling: "[C]ourts have generally accepted the utilization of evidence of the syndrome where the killing occurs during or immediately after [emphasis added] a battering incident."81 Before allowing admission of expert testimony to show that the battered spouse syndrome created in the defendant a perceived need to kill in self-defense, a court will determine whether the triggering event -- that is, a battering incident -- was sufficiently close in time to allow the admission of evidence of battered spouse syndrome. If the court finds that the battering incident was indeed sufficiently close in time to the homicide, "the issue of self-defense would be a question for the jury once it had the evidence of the 'battered spouse syndrome' before it."82 The Williams court recognized that the admission of expert evidence of battered spouse syndrome is necessary if the jury is to understand a battered woman's perceptions of her situation, and properly determine whether her perceived need to kill in self-defense was reasonable.83
The ruling of Williams -- its crucial determination of whether a battering episode and the commission of a homicide are reasonably proximate in time -- makes the provisions of § 563.033, RSMo 1994, difficult to invoke in a nonconfrontational situation. When the battered woman kills her batterer during a lull in an otherwise constantly threatening cycle of violence, her assertion of self-defense "becomes much more tenuous in the eyes of the courts."84 In such nonconfrontational circumstances, "courts do not consider evidence of her status as a battered woman or the circumstances surrounding the killing sufficient to constitute a prima facie showing of self-defense."85 The result will be that battering syndrome evidence will be inadmissible as irrelevant, since self-defense will not have been properly injected into the case.86
Missouri law thus places considerable difficulties in the path of a parricide defendant attempting to raise the issue of self-defense at trial. Parricide incidents frequently occur in nonconfrontational situations. The ruling of Williams will prohibit the use of § 563.033 to admit battering syndrome evidence if a battering incident is considered by a court to be too remote in time from the homicide, even assuming that children are meant to be included within the statute's provisions. The ruling of State v. Weems will then force the defendant to meet the traditional self-defense standard; that is, the defendant must show evidence that a reasonable adult male would have believed he faced an immediate, and not merely imminent, threat of violence.87
This distinction between "imminent harm" and "immediate harm" is crucial. As the Washington Supreme Court held in State v. Janes, "[t]hese two words have divergent meanings: imminent . . . ready to take place: near at hand: . . . hanging threateningly over one's head: menacingly near . . . immediate . . . occurring, acting, or accomplished without loss of time: made or done at once . . . ."88 The ruling in Weems retains the immediate threat standard, despite the language of § 563.031. By retaining the traditional approach to self-defense, Missouri case law fails to take into account the unique problems and perceptions of an abused-child parricide defendant. An abused child's familiarity with his or her batterer influences the child's reasonable perception of imminent danger. An abused-child parricide often strikes when no objectively immediate threat seems to exist. Due to the battered child's heightened perception of the abuser's patterns of behavior, he or she may have seen the abuser's actions as the prelude to a violent attack, and feared for his or her life due to the imminent threat the abuser seemed to pose. If a jury is not allowed to consider the abuse suffered by the individual child before them and be instructed on how the abuse caused the child to develop his or her heightened perception, they will not understand how the child could have reasonably believed in the necessity of violent self-defense. Without this insight, the jury will see the child as an unprovoked aggressor, and reach their verdict accordingly.
V. Battered Child Syndrome Evidence as a Defense: State v. Janes
As previously stated, few states allow the admission of battered child syndrome evidence in homicide trials for the purpose of establishing self-defense.89 It has been very aptly observed that "[s]tates that have rejected admitting battered child syndrome evidence in self-defense cases demonstrate a reluctance to depart from the traditional requirements of self-defense. They ignore the fact that traditional self-defense doctrine is biased towards stranger violence and fails to adequately address intimate violence."90 However, some recent court decisions have challenged the limits of this traditional approach. In the case of State v. Janes, the Washington Supreme Court ruled that it was reversible error to exclude evidence of battered child syndrome, since admission of expert testimony on the syndrome would "aid the jury in evaluating the manner in which a battered child perceives the imminence of danger and his or her tendency to use deadly force to repel that danger."91
The facts in Janes display many of the common features of an abused-child parricide incident. Sometime in 1978, Walter Jaloveckas began living with his paramour, Gale, and her two young sons, Andrew and Shawn.92 Walter was violent, abusive, and given to frequent outbursts of anger.93 Trial testimony revealed that Walter inflicted "chronic and enduring abuse"94 upon Andrew, and that Andrew's home displayed "an unremitting pattern of episodic terror."95
On August 29, 1988, Walter became upset upon learning that one of his friends had been arrested.96 He argued with Gale, and eventually went to Andrew's room, where he "leaned his head into Andrew's room and spoke to him in a low voice."97 Andrew later claimed that Walter "criticized him but that he couldn't remember exactly what Walter had said."98 At trial, Andrew testified he had no memory at all of the content of Walter's statements at that time.99 On August 30, 1988, Walter had left for work when Andrew awoke.100 Gale mentioned to Andrew that Walter still seemed angry.101 Later that morning, Andrew loaded a shotgun in his home in the presence of a classmate, and told that classmate he intended to kill Walter.102 Andrew hid the loaded shotgun and left for school.103 There he smoked marijuana with some other students and left school early, returning to his empty home.104 Shortly afterward, two of Andrew's classmates came to his home to warn him against killing Walter.105 Andrew replied, "Well, I can get out of it, no problem."106 The classmates later testified that these comments were similar to those made by Andrew on at least three earlier occasions.107 After 15 minutes, Andrew's two friends left him.108
Andrew later testified that his memory of what happened next was unclear.109 He did recall that he watched television and that he broke the lock off Walter's bedroom door to take some whiskey, marijuana, and a nine-millimeter pistol.110 The door was locked because Walter believed Andrew had previously stolen drugs from him.111 Andrew then recorded an audiotape statement, addressed to his mother, stating his intention to kill Walter and his reasons for doing so.112 When Walter returned home at approximately 4:30 p.m. that evening, Andrew shot him twice in the head with the pistol, killing him.113 Andrew then activated the house-alarm system, summoning police, fire, and medical response teams.114 When the police arrived, Andrew began to fire on them at random, wounding a policeman and a passerby before surrendering.115 While being transported to jail, Andrew confessed to killing Walter and later signed a written confession.116
On the basis of these facts, the trial court denied Andrew's motion for a self-defense instruction.117 The trial court held that the events leading up to the homicide were too remote and insufficiently aggressive on Walter's part to establish imminent danger and to justify a self-defense instruction.118 The defense also moved for a diminished capacity instruction.119 This motion was granted and expert evidence of post-traumatic stress disorder and of the circumstances of Andrew's household was presented in evidence.120 Testimony revealed numerous instances of violence directed at Andrew, Shawn, and Gale.121 Neighbors and schoolteachers had more than once contacted Washington's Child Protective Service after seeing evidence of Walter's abuse of Andrew.122 Family friends testified that Walter had beaten Andrew in their presence.123 In sum, "the testimony documented a litany of abusive behavior by Walter toward Andrew and his family."124 Andrew was convicted of second-degree murder and two counts of second degree assault, and was given a reduced exceptional sentence of 10 years for the murder count, and 20 months each for the assault counts, to be served concurrently.125
The Washington Court of Appeals reversed Andrew's conviction on the second-degree murder count, citing the trial court's error in failing to instruct the jury on self-defense.126 The Washington Supreme Court accepted review to clarify questions concerning the battered child syndrome and self-defense.127 In deciding whether battered child syndrome evidence was admissible in the self-defense context in Washington courts, the Washington Supreme Court held that it was satisfied that battered child syndrome evidence is sufficiently reliable to meet the criteria for admission of novel scientific evidence found in Frye v. United States.128 It was also found admissible under Washington's Rule of Evidence ER 702.129 Although the court stated that it had never ruled specifically on the admissibility of battered child syndrome evidence, it had previously recognized the validity of battered woman's syndrome evidence.130 The court recognized that "[b]oth syndromes find their basis in abuse-induced PTSD and elicit a similar response from the abuse victim. . . . Given the close relationship between the battered woman and battered child syndromes, the same reasons that justify admission of the former apply with equal force to the latter."131 The court went on to hold that "the battered woman syndrome and the battered child syndrome constitute a single psychological disorder for purposes of expert testimony. . . . [T]he differences between the two groups are negligible. [Citation omitted]."132
The court further held that battered child syndrome evidence serves the same function as that of battered woman's syndrome in aiding the finder of fact to understand the perceptions of the defendant in a homicide trial:
Without the aid of expert testimony on the psychology of battered children, the jury will be unable to appreciate the manner in which the abused child differs from the unabused child. Specifically, the jury will be uninformed as to the difference in the way battered children perceive things in their immediate surroundings and react to those perceptions. Expert testimony can help the jury understand the sense of powerlessness, fear, and anxiety which permeate the battered child's world.133
The court then turned to the question of whether Andrew made a sufficient showing of evidence to merit an instruction on self-defense. The court ruled there is a low, but not non-existent, standard for raising the issue of self-defense under Washington law.134 In order to receive a self-defense instruction, a defendant "must produce some evidence regarding the statutory elements of a reasonable apprehension of great bodily harm, and imminent danger. RCW 9A.16.050."135 The Washington Supreme Court remanded the case to the trial court in order to determine if Andrew could make a sufficient showing of evidence to merit a self-defense instruction.136
Under Washington law, whether the defendant has made a sufficient showing of evidence to merit a self-defense instruction is a matter of law for the trial court.137 If this hurdle can be negotiated by the parricide defendant, the ruling of State v. Janes now entitles a defendant to introduce expert testimony on battered child syndrome. The Janes court held that Washington's
approach to the reasonableness requirement of its self-defense law incorporates both subjective and objective characteristics. It is subjective in that the jury is "entitled to stand as nearly as practicable in the shoes of [the] defendant, and from this point of view determine the character of the act." Also, the jury is to consider the defendant's actions in light of all the facts and circumstances known to the defendant, even those substantially predating the killing. [Emphasis added]. The self-defense evaluation is objective in that the jury is to use this information in determining "what a reasonably prudent [person] similarly situated would have done." [Citations omitted].138
By allowing the admission of battering evidence even in situations where an alleged battering incident that ostensibly triggered a homicide "substantially predat[es]" that homicide, the Janes court departs from the ruling of cases such as State v. Williams and their limitation upon admission of battering evidence when a battering incident and a homicide are not close in time. By so doing, the Janes court recognizes the realities of abused-child parricide incidents and allows the law to fairly account for them.
The Janes court also held that battered child syndrome evidence is necessary to allow the finder of fact to evaluate the defendant's actions from a subjective standpoint. "Expert testimony on the battered person syndromes is critical because it informs the jury of matters outside the common experience. Once the jury has placed itself in the defendant's position, it can then properly assess the reasonableness of the defendant's perceptions of imminence and danger."139 But the court took care to emphasizes the important role the objective criteria of Washington's self-defense law plays:
The objective portion of the inquiry serves the crucial function of providing an external standard. Without it, a jury would be forced to evaluate the defendant's actions in the vacuum of the defendant's own subjective perceptions. In essence, self-defense would always justify homicide so long as the defendant was true to his or her own internal beliefs. [Citation omitted].140
The objective criteria in self-defense law are, therefore, necessary in order to prevent self-defense from becoming a legal standard with as many different legitimate definitions as there are homicide defendants.
The recognition of battered child syndrome and the modified standards of self-defense law that are the essence of the ruling in State v. Janes are the preferred legal responses to the problem posed by the abused-child parricide defendant, and should serve as the model to other states. But the Janes approach is not the only such response. An alternative approach is available that represents a potential compromise position on the use of battered child syndrome evidence in jurisdictions that are reluctant to adopt the rule of Janes. This compromise approach takes account of several criticisms of Janes, avoids dramatic modification of the accepted standards of self-defense law, and also contains several potential policy advantages. This alternative approach is examined further below.
VI. Battered Child Syndrome as a Mitigating Excuse
Despite the emphasis the Washington Supreme Court put on the importance of objective criteria in self-defense law, some scholars still fear the ruling of State v. Janes makes the law of self-defense too subjective to fulfill its goal of promoting justice and social harmony. The ruling in Janes permits the admission of battering evidence even when a battering episode "substantially predat[ed] the killing." This language makes Janes a major departure from the ruling in cases such as State v. Williams, which limits the admission of battering evidence depending upon the proximity in time of a battering episode and a resulting homicide. In order to preserve what they see as the essential policies and purposes of self-defense law, a few scholars propose using battered child syndrome evidence as a mitigating excuse when the homicide is committed in a clearly nonconfrontational situation. This, they believe, will preserve the traditional social and legal goals of objective self-defense law, while still allowing a just and compassionate response to the plight of the abused-child parricide offender.
The most cursory examination of abused-child parricide trials reveals the wide variety of the final verdicts such cases produce. For example, 17-year-old Donna Marie Wisener of Texas was charged with first-degree murder in the death of her father.141 Donna shot her father after a verbal argument.142 At trial, she was allowed to introduce expert testimony on the effect of the abuse she had suffered from the homicide victim.143 This expert testimony claimed the history of abuse caused Donna to fear imminent violence from her father as a result of the argument.144 The trial court admitted expert testimony on battered child syndrome despite the fact that the homicide took place in a nonconfrontational situation.145 As a result, the jury acquitted Donna of the charges against her.146
The resolution of an abused-child parricide trial demonstrating the opposite extreme may be found in the Missouri case of State v. Lannert. Stacey Ann Lannert shot her father while he was sleeping.147 At trial, Stacey's attorney introduced evidence of the long-term sexual abuse she suffered in an attempt to show mental disease or defect.148 Stacey was convicted of first-degree murder and sentenced to life in prison without the possibility of probation or parole.149 Her conviction was upheld on appeal.150
Cases such as those of Donna Marie Wisener and Stacey Ann Lannert serve to "illustrate the extreme and unsatisfactory results that have been obtained in parricide cases."151 Results such as that in Lannert do not "take into account all of the facts and circumstances surrounding the parricides, and emphasizes only the narrow goals of preserving human life and limiting self-help."152 Yet decisions such as that in Janes and the outcome of the Wisener trial are equally unsatisfactory in that such results allow expert testimony to establish claims of self-defense in a nonconfrontational situation, focusing "primarily on the abuse inflicted on the defendants and defeat[ing] the purposes of the strict requirements of the self-defense doctrine."153 Neither extreme is "appropriate, desirable, or effective in most parricide cases."154
Society's interest in preserving human life and the respect it deserves is the policy embodied in the law of self-defense. Society has recognized that it has an equally vital interest in preventing the abuse of children, and has demonstrated this recognition through legislation and public awareness. Yet "[t]he goals of combating abuse must also be considered when adolescents who have not received societal protection take the lives of abusive parents."155 Parricide unquestionably prevents the slain parent from further abusing his or her children. But quite apart from the many other sound reasons for a civilized society to reject such a solution, it accomplishes nothing in the way of addressing "the long-term goals of preventing child abuse and ending the child's cycle of violence."156 Society's compelling interest in discouraging such violent self-help must be adequately addressed, as well.
Ideally, intervention by family, teachers, and responsible authorities in the lives of abused children will occur before a troubled family disintegrates into lethal violence. Social services in this society, of course, often function in a way that is far from ideal. Nevertheless, the goals of ending child abuse, healing the damage done to the victims of such abuse, and maintaining society's commitment to preserving the sanctity of human life might all still be achieved even when preventive measures have failed and a parricide has occurred. One scholar believes that this can be accomplished by using battered child syndrome to justify the reduction of a murder charge to one of voluntary manslaughter.157 Rather than forcing the abused-child parricide who killed in a nonconfrontational situation to plead insanity or attempt to introduce battering evidence to show self-defense, the better use of battering evidence is to establish a partial excuse158 for the parricide's actions. The partial excuse approach holds that although a nonconfrontational parricide is not justifiable self-defense and "the child is not legally insane and consequently devoid of all responsibility for the act, his or her culpability for the death of an abusive parent is lessened by the effects of post-traumatic stress disorder on his or her state of mind at the time of the killing."159 The recognition of battered child syndrome as a factor providing a homicide defendant with a partial excuse for his or her actions "more accurately reflects the legal reality of the child's act than does either self-defense or insanity."160 The use of this approach may avoid the uncertain outcomes of trials where the defense is based upon either insanity or upon battering evidence used to show self-defense. Juries commonly reject an insanity defense and convict.161 An acquittal resulting from an insanity defense is followed by the civil commitment of the defendant.162 Even in situations where battered women are allowed to offer battering evidence in attempts to establish self-defense, conviction is still a common outcome.163 There is no reason to believe that use of battered child syndrome would enjoy more success. A uniform partial excuse approach to charging such offenses might lead to a welcome uniformity in final adjudication.
Convicting an abused-child parricide who killed in a nonconfrontational situation of voluntary manslaughter can potentially provide society with an opportunity to impose a sufficient punishment upon the offender so as to vindicate society's vital interest in the preservation of human life and the discouragement of violent self-help. At the same time, it also provides an opportunity for society to recognize its failure to intervene to protect the child from the abuse he or she suffered, and to undertake remedial action to heal the physical and psychological damage inflicted upon the child. Such remedial action can permit the child to resume a useful place in society after a reasonable period of confinement and treatment. Most abused-child parricides prove to respond quite favorably to psychiatric treatment and rehabilitation, and very rarely pose any threat of further criminal activity.164
VII. Case Study of a "Typical" Abused-Child Parricide: State v. Lannert
The facts of State v. Janes presented an excellent illustration of a typical parricide incident. It will be useful to examine another parricide case demonstrating similar circumstances. This second case is one that produced a very different outcome at trial, an outcome later affirmed at the appellate level. This section shall take a closer look at the previously mentioned case of State v. Lannert.
On July 4, 1990, Stacey Ann Lannert, age 18, shot and killed her father, Tom Lannert, as he lay sleeping in the family's St. John, Missouri, home.165 The facts established at trial demonstrated that Stacey and her younger sister Christy, age 14, were living with their father at the time of the killing.166 The girls' mother was divorced from Tom.167 She had remarried and was living on the island of Guam.168 Stacey and Christy lived intermittently with their mother, and Christy had lived occasionally with other relatives.169 Stacey had been living with her mother until shortly before the killing.170 Upon her return to St. John, Stacey began to talk to friends about how she wished her father was dead, and about killing him herself or hiring someone to kill him.171 A friend, Ron Barnett, instructed Stacey on how to rig her father's car so that it would explode.172 This plan failed, so Barnett instructed Stacey on how to shoot her father in such a way that it would look as if a burglar was responsible.173 Stacey practiced firing a rifle at her grandparents' farm in nearby Illinois.174 At the same time Stacey began to forge checks drawn on Tom's bank account and use his credit cards without his knowledge.175 With the money so gained she bought things for herself and gifts for friends, paid Barnett's rent and paid for a hotel in which she and Christy stayed the night of the homicide.176
Stacey also told friends she thought she would inherit her father's estate -- later valued at a total of $482,000 -- after his death, and that she fantasized about what she could do with the money.177 On the day before the shooting, Stacey and Christy spent the day in downtown St. Louis.178 At approximately 4:15 a.m. the next morning, they returned home to get their dog, after which they intended to stay at a hotel.179 Stacey entered the house through a basement window, rather than through the door.180 In the basement, she saw the rifle where she had left it.181 In her later confession, Stacey said, "I decided at that moment that I was going to do it, I was going to kill him."182 She found her father "passed out" on a couch, and shot him in the shoulder, breaking his collarbone.183 Her father leaped up and asked her to summon help.184 Stacey put down the rifle and walked away to look for the phone, but then thought, "He didn't deserve to live."185 She returned and found Tom again lying on the couch.186 Stacey picked up the rifle again and shot him in the head, killing him.187
Stacey left the house the way she had entered, taking the rifle with her, which the next day she gave to Barnett to dispose of.188 She and a friend later returned, cleaned out her car, and staged a scene as if she had just returned and discovered the body.189 While later being questioned by police, her friend implicated her, and Stacey confessed her role in her father's death.190
These are the facts found at trial that were presented to the appellate court, which upheld Stacey's conviction for first-degree murder.191 Additional information appeared in the newspaper accounts of Stacey's arrest and trial. Stacey had returned from her mother's home on Guam approximately one month before the homicide.192 She had apparently tried for three weeks to find someone to kill her father for money, but finally killed him herself.193 She gave a .22 caliber rifle, the weapon used in the homicide, to Barnett to dispose of, but he sold it to a friend.194 In her statement to the police, Stacey claimed that her father had sexually abused her.195 She was later to specify that this abuse had been ongoing since she had been "in the third grade."196 Christy Lannert was arrested at approximately the same time, and was later certified to stand trial as an adult.197 Christy later plead guilty to conspiracy and received a five-year prison sentence.198
Stacey had been a senior at Ritenour High School earlier in 1990, but had dropped out of school to go to Guam because of "unspecified medical reasons."199 Christy had also apparently dropped out of school.200 Stacey's school principal, Ned Richardson, was quoted as saying, "Like everybody else, I'm completely shocked. She was a fine young lady while she was here."201 Neighbors were quoted as saying that Tom Lannert and his daughters "had been friendly but had kept to themselves."202 Stacey said that Christy had called her in Guam and asked her to return, because their father would abuse Christy when he was drunk.203 Stacey described her father as an alcoholic with a violent temper.204 At the time of the homicide, Tom Lannert had recently dissolved his consulting business and spoke to neighbors of moving to San Francisco.205 Neighbors also said Tom had declared his house was for sale.206
At Stacey's trial, her defense attorney sought to admit evidence of battered spouse syndrome.207 Missouri does not recognize the validity of battered child syndrome and the language of § 563.033 makes no provision for battered children. However, Missouri case law holds that a battered woman need not have been the spouse of her batterer,208 so § 563.033 would likely have applied by analogy to Stacey's situation. The trial court did not rule on this supposition, however. The prosecution objected to the admission of expert testimony on the battered spouse syndrome before the defense had made a showing of evidence injecting the issue of self-defense into the case.209 The trial court agreed with the prosecution's objection, and refused to admit evidence of battered spouse syndrome without a prior showing of evidence injecting self-defense as an issue.210 The defense then made no attempt to raise that issue, but instead relied on a defense of mental disease or defect.211 The trial court did allow evidence of the abuse Stacey had been subjected to and the testimony of an expert witness as to post-traumatic stress disorder.212 The prosecution responded to this testimony by presenting its own experts, who testified that at the time of the killing, Stacey was in control of her actions and could differentiate between "right and wrong."213 The jury found there was insufficient evidence of mental disease or defect to negate an element of the crime,214 and convicted Stacey of first-degree murder.215 Since the state did not seek the death penalty, the mandatory sentence was life in prison without the possibility of probation or parole.216 Stacey began serving this sentence in late 1992.217
VIII. Clemency
The tragic history of the Lannert family serves to illustrate a typical parricide incident, and provides a chilling perspective of both an abusive household and the pattern of spiraling violence and fear which ends in parricide. State v. Janes and partial excuse mitigation suggest two different legal responses to the abused-child parricide offender. Both are potentially appropriate. But whether one accepts a liberalized standard for admission of battering evidence to establish self-defense or believes that partial excuse mitigation is the more legally appropriate use of such evidence in nonconfrontational homicides, the problem posed by the result of State v. Lannert remains: What is to be done about the many abused-child parricides currently serving lengthy prison sentences? Such long-term incarceration is a miscarriage of justice if the convicted parricide was denied a chance to establish self-defense by offering expert testimony of battered child syndrome under a Janes regime. It is likewise an unacceptably harsh result under partial excuse mitigation, with its emphasis on mitigation of punishment and eventual rehabilitation for abused-child parricide offenders. Executive clemency for those convicted abused-child parricides who have already served considerable periods of incarceration can solve this problem. This clemency solution has recently been applied in the cases of two Missouri battered women.
In December of 1992, out-going Missouri Governor John Ashcroft reviewed the sentences of two incarcerated battered women and commuted their sentences from "life imprisonment without the possibility of parole" to "life with the possibility of parole."218 The case of one of these women, Helen Martin, is interesting in light of Lannert. Helen Martin had frequently been abused by her husband, Ronald.219 When they separated, Helen remained in the couple's house with their young daughter.220 Ronald at one point spoke of having the house blown up in order to collect against the insurance policy on the dwelling.221 Fearing for her own and her daughter's safety, Helen hired a man to kill Ronald.222 Helen and the hired assassin waited until Ronald came to the house on December 5, 1980.223 The assassin then ambushed Ronald in the house, shooting him in the head and back, killing him.224 Helen helped clean up traces of the crime and to dispose of the body.225 But Ronald's body was discovered on December 9, and Helen confessed to her part in the crime the next day.226 At her trial, expert testimony on battering syndromes was denied, as Helen could not show sufficient evidence to merit a self-defense instruction.227 Helen was convicted of capital murder and sentenced to life without parole for 50 years.228 Her conviction was upheld on appeal.229 She had already served 11 years at the time of the commutation of her sentence.230
In 1987, Missouri adopted § 563.033, allowing the admission of expert testimony on battered spouse syndrome in homicide trials when self-defense has been raised.231 At the end of his second term, Governor Ashcroft, a conservative Republican, reviewed Helen Martin's case.232 Although Governor Ashcroft had "never before commuted a prisoner's sentence,"233 he "singled out Martin and [another battered woman] for special review because they were convicted before the enactment [of § 563.033]. . . . 'In both of these women's cases, the law prohibited juries from hearing about the severe abuse and trauma they endured,' Ashcroft said. 'In the interest of justice, I am commuting the sentences. . . .'"234
The choice of Helen Martin for commutation is an interesting one, and can possibly be seen as having anticipated the ruling of Janes in regard to the issue of the proximity-in-time of a battering incident and a resultant homicide. The facts of Martin -- the lengthy premeditation necessary in order to hire a hit-man, the battered woman personally assisting the assassin in the commission of the crime, and, most significantly of all, the lack of any immediate threat to the abused woman -- all place this incident far from the situation of a typical battered-woman homicide incident, well outside any traditional definition of self-defense, and beyond the ruling of State v. Williams as to proximity-of-time issues. Yet, as Governor Ashcroft observed, had the jury in Helen Martin's trial heard evidence of the abuse inflicted upon her by her husband, coupled with expert testimony of the effects of battering syndrome, the outcome of her trial might have been very different.235 The governor's statements and actions were in one crucial respect consistent with the ruling of State v. Williams: "[I]f the evidence of [battered spouse] syndrome is to have any meaning under Sec. 563.033 it must be as a modification of the mental state required of the battered woman."236 Thus, Governor Ashcroft's action was the appropriate remedy for a previous injustice.
Governor Ashcroft has not been alone in granting clemency to imprisoned battering victims. In December 1990 and in January 1991, out-going Governor Richard F. Celeste of Ohio granted clemency to a total of 28 incarcerated battered women.237 Shortly after this, Governor William D. Schaefer of Maryland reduced the sentences of eight Maryland women.238 Governors Jim Edgar of Illinois, Lawton Chiles of Florida, and Pete Wilson of California also granted clemency to incarcerated battered women during their terms in office.239
What precisely is clemency, and where does the clemency power rest? In Missouri, Article IV, § 7 of the state constitution gives the governor power to grant full or conditional pardons, commutations, or reprieves after a conviction in the state's courts.240 Missouri's constitution limits the governor's clemency power only in cases of treason or impeachment.241 Missouri also has a State Board of Probation and Parole, which investigates all clemency applications and submits both reports and nonbinding recommendations to the governor.242 Other state constitutions and statutes provide for similar systems. The clemency power itself has been described as "a discretionary executive power. It is both legal and political in nature: legal because this authority comes from a constitution and political because an executive can consider factors that judges and juries cannot."243 The clemency power in the chief executive is designed to be "an instrument of equity in the criminal law designed to promote the general welfare by preventing injustice."244 This exercise of equitable power by a chief executive has long been considered necessary and desirable in the constitutional scheme of government and law.245
Grants of clemency by state governors often occur in response to recent changes in the laws or in public policy. Missouri ratified its battering evidence statute, § 563.033, during Governor Ashcroft's first term,246 and Ohio had adopted such a measure just four months before Governor Celeste issued his grants of clemency.247 But the executive's power of clemency is not limited to incidents where the legislature or the courts have already acted to change the law. A chief executive's power of clemency can and should be used to provide a remedy for an arguable injustice, even when the law-making branches of government have not yet finally and unambiguously recognized a situation as being unjust and in need of reform. The clemency power is properly invoked when it is used to allow certain past cases to catch up with legislative or judicial changes in the law. It is also a proper exercise of executive power to use grants of clemency to guide the law to the next stage of its logical and consistent development. The granting of clemency to incarcerated battered children, in states where judicial decision or legislative action has not yet acknowledged the validity of the battered child syndrome, would be such a proper use of executive power. As discussed above, the battered child syndrome, when used to identify the existence of a post-traumatic stress disorder in an abused child, is a close parallel to the widely accepted battered woman syndrome. Acceptance of the battered child syndrome in the self-defense context, however, has been very poor. One reason suggested for the reluctance of courts to recognize battered child syndrome is the fact that the syndrome did not originate as psychological phenomena, but rather to explain the occurrence of a pattern of easily identified physical injuries.248 "Consequently, the syndromes are not viewed as equivalent."249 But whatever the validity of this theory, an executive can, by granting clemency to convicted battered children who were prevented from using battered child syndrome evidence, take a responsible leadership role in encouraging the law to reach the next stage of its logical and consistent development. This "logical and consistent" development in the law of the admissibility of battering syndrome evidence is represented by the ruling of State v. Janes, and is hinted at in the ruling of State v. Williams. As implied in Williams, the proper use of the battering syndrome evidence is to show how the effects of post-traumatic stress disorder and the battering victim's familiarity with the behavior of their abuser altered the perceptions of the battering victim so as to permit the abused person to meet the elements of the self-defense test. This remains true even when a particular battering incident substantially predates a homicide.
One serious objection that can be raised to the call for a broader exercise of the clemency power is that an executive may abuse this power in order to substitute his or her own judgment for that of co-equal branches of government. But an actual occurrence of an executive abusing his or her power in such a fashion must be considered a very remote possibility. An executive is subject to the impeachment power of legislatures for such gross abuses of authority, and, of course, the executive always remains exposed to the weight of public opinion. Another safeguard against abuse of the clemency power would be that only in those instances where the law has hesitated to reach the next consistent level of its development should an executive act to force the pace of change.
A responsible executive must indeed make a very long, careful, and considered judgment of the individual merits of a case before he or she makes a radical departure from existing law in a desire to encourage reform. But in situations that would represent a less dramatic departure, the executive acts properly in using his or her discretionary powers of clemency to encourage change. Granting clemency to incarcerated battered children is an example of such responsible discretionary justice.
IX. Conclusion
The material presented in this work is meant to promote understanding of the plight of those children and young adults driven to kill abusive parents. It is also intended to provide a resource, albeit a cursory one, for defense lawyers, prosecutors, and courts who wish to become more familiar with the unique and difficult challenge abused-child parricide cases present. Some concluding remarks and recommendations now follow.
Society has a special abhorrence of the crime of parricide, and is generally in the grip of numerous myths and misconceptions about some of the perpetrators of the crime. Many people, although superficially aware of the social problem of child abuse, react with disbelief when confronted with specific instances of the problem. The precise details of the violence perpetrated upon children by their parents often seem too incredible to be believed. Yet it is frequently later discovered that the occurrence of the abuse was known, or at least suspected, by other adults in the child's life. Despite such knowledge, any action taken to protect the child either failed or was never undertaken at all. Abused children are commonly presented with even fewer realistic opportunities to escape a violent household than adult battering victims. For many abused-child parricides, "kill or be killed" seems the only realistic option open to them.
Courts, legislatures, and the public have begun to recognize and respond to the plight of the battered woman. But the same sort of change has come about much more slowly in the case of battered children. Many states have recognized, either by judicial decision or by legislation, the validity of battered woman's syndrome evidence.250 Yet evidence of battered child syndrome, used in homicide trials to show that a defendant acted in self-defense, has not received the same level of acceptance,251 despite the close parallels in the two syndromes' effect upon victims. But Janes signals a change. Almost certainly, courts and legislatures around the United States will begin to follow the Washington Supreme Court's lead. Indeed, some state statutes on the admissibility of battering syndrome evidence are already meant to include all battered persons within their protection.252 Clemency for incarcerated battered women has been used to remedy those situations that might have produced a different outcome had battering evidence been available to the defendant. As acceptance of the battered child syndrome begins to grow, it is now equally appropriate for state executives to review and, where appropriate, commute the sentences imposed on incarcerated battered children.
One case suitable for review is that of Stacey Lannert. As discussed above, her case presents an excellent example of the typical parricide. The circumstances surrounding the commission of the homicide in State v. Lannert are remarkably similar to those in State v. Martin. The considerations of remedial justice that prompted Governor Ashcroft to grant clemency to Helen Martin are as equally valid and compelling in the case of Stacey Lannert. If, after review of her case in light of the principles discussed herein, it is determined that clemency is indeed appropriate for Stacey Lannert, then her sentence should be commuted in at least the same manner as that of Helen Martin's. The sentences of other incarcerated battered children, both in Missouri and in other states, should also be reviewed with the same goals in mind. The use of the power of executive clemency is now strongly urged as an appropriate means of mitigating the personal, social, and legal consequences of past practices in dealing with abused-child parricide offenders.
The ruling of State v. Janes represents the preferred approach in dealing with abused-child parricide cases. However, political and judicial realities make the acceptance of the Janes approach in some jurisdictions unlikely in the immediate future. As a compromise position, "partial excuse" represents a more conservative approach to the problem of abused-child parricides. Several important policy benefits might also be realized by using battering evidence to establish a partial excuse for abused-child parricides who kill in nonconfrontational situations. These benefits include mitigation of punishment and a focus on rehabilitation, the preservation of the social and legal principles protected by the strict requirements of the laws of self-defense, and the uniformity of result made possible by a uniform approach to charging abused-child parricide offenders.
Other recommendations include the amendment of § 563.033, RSMo 1994, to unequivocally permit the admission of battering syndrome evidence for all victims of domestic violence. Statutes allowing the admission of battering syndrome evidence in a self-defense context should be adopted by those states that have not yet done so. These statutes should include all battered persons within their scope. Groups dedicated to championing the cause of incarcerated battered children can and should be organized. For example, students at Pace Law School and CUNY Law School may now participate in advocacy groups that prepare and file clemency briefs for incarcerated battered women in New York prisons.254 These New York programs can serve as the model for similar programs aimed at addressing the issue of incarcerated battered children throughout the United States.
In conclusion, when lawmakers and courts fashion society's response to the abused-child parricide offender, they must look beyond the strict application of traditional legal principles and create a method of facing these tragedies that will vindicate both justice and humanity. The legal system and the society it serves must come to recognize their past failures in protecting children, aiding troubled families, and preventing criminal acts of abuse. The legal system must create a method of dealing with the abused-child parricide offender that will permit families, abused children, and their communities to all begin healing the grim consequences of those past failures.
Endnotes
1 A single example would be the 28 commutations of sentence issued by Ohio Governor Richard F. Celeste in 1990 and 1991.
2 One such example was the commutation of the sentence of two incarcerated battered women in Missouri by Governor John Ashcroft.
3 The American Heritage Dictionary of the English Language (1969) defines "parricide" as: "1. One who murders his father or mother or other near relative. 2. The act of committing such a murder. 3. Rare One who murders someone to whom he owes reverence." This article follows this definition.
4 See Aeschylus' "Oresteian Trilogy"; William Shakespeare's "The Third Part of Henry VI" and "The Tragedy of King Lear" for examples.
5 The Ten Commandments, for example, order all people to "Honor thy father and thy mother . . ." Holy Bible (KJV) Exodus 20:12. Other cultures have similar laws.
6 Hope Toffel, Crazy Women, Unharmed Men, and Evil Children: Confronting the Myths About Battered People Who Kill Their Abusers, and the Argument for Extending Battering Syndrome Self-Defenses to All Victims of Domestic Violence, 70 S. Cal. L. Rev. 337 (1996), at 364.
7 For example, Lizze Borden; Eric and Lyle Menendez.
8 Anastasia Toufexis, When Kids Kill Abusive Parents; Once seen as evil or ill, these desperate youngsters are gaining new sympathy, Time, Nov. 23, 1992, at 60.
9 Charles Patrick Ewing, Fatal Families: The Dynamics of Intrafamilial Homicide, (1997), at 104.
10 Kathleen M. Heide, Why Kids Kill Parents: Child Abuse and Homicide (1992) Sage ed. (1995), at 6.
11 Susan C. Smith, Abused Children Who Kill Abusive Parents: Moving Toward an Appropriate Legal Response, 42 Cath. U. L. Rev. 141 (1992).
12 Heide, note 10 at 6.
13 Id., at 3. [Footnote omitted].
14 Ewing, note 9 at 104.
15 Smith, note 11 at 153.
16 Jamie Heather Sacks, A New Age of Understanding: Allowing Self-Defense Claims for Battered Children Who Kill Their Abusers, 10 J. Contemp. Health L. & Pol'y 349 (1994), at 358.
17 Smith, note 11 at 153.
18 Heide, note 10 at 6.
19 Id.
20 Id.
21 Id.
22 Id. at 154.
23 Sacks, note 16 at 354.
24 Smith, note 11 at 154.
25 Sacks, note 16 at 355.
26 Id.
27 Smith, note 11 at 153-54.
28 Examples of such widespread knowledge of abuse with no effective intervention may be found in State v. Janes, 850 P.2d 495 (Wash. 1993), and the case of Roy Rowe, discussed in Toufexis, note 8.
29 Smith, note 11 at 154
30 Toufexis, note 8.
31 Smith, note 11 at 154.
32 Id.
33 Id. at 142.
34 Id.
35 Merrilee R. Goodwin, Parricide: States Are Beginning to Recognize That Abused Children Who Kill Their Parents Should be Afforded the Right to Assert a Claim of Self-Defense, 25 Sw. U. L. Rev. 429 (1996), at 439.
36 Id.
37 Smith, note 11 at 154.
38 Id.
39 Goodwin, note 35 at 439.
40 Smith, note 11 at 154.
41 Sacks, note 16 at 354.
42 Goodwin, note 35 at 451.
43 Toffel, note 6 at 339.
44 Id.
45 Lenore E. A. Walker, Battered Women Syndrome and Self-Defense, 6 Notre Dame J.L. Ethics & Pub. Pol'y 321 (1992), at 326.
46 Id. at 327.
47 Id.
48 Id.
49 Id.
50 Id.
51 Id. at 330.
52 Id.
53 Id.
54 Id.
55 Id.
56 Id.
57 Id.
58 Id.
59 Id. at 333-34.
60 Toffel, note 6 , at 350. Citing the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), Hope Toffel writes: "PTSD is a gender- and age-neutral disorder. Any person may develop it as a result of an unusually traumatic experience."
61 Goodwin, note 35 at 437-38.
62 Sacks, note 16 at 355-56.
63 Goodwin, note 35 at 437.
64 Id.
65 Id.
66 Id.
67 Id. at 438.
68 Id. at 449-50. Goodwin notes some important considerations in the use of expert testimony on battered child syndrome in homicide trials: "Expert testimony on battered children and the dynamics which occur in violent homes can enable a jury to understand the defendant's perceptions of danger as being reasonable in a nonconfrontational setting and bring the homicide within the arena of self-defense. In order for a court to admit expert testimony, generally two elements are required. First, the subject of inference must be so related to a science that it is 'beyond the ken' of laymen. Second, the expert's opinion will aid the trier of fact in the search for the truth. The primary purpose of presenting expert testimony is to inform a jury about an area of knowledge that is unfamiliar to them. Many courts have recognized that the psychological condition of victims of intrafamily abuse is a topic with which juries are not sufficiently familiar and often is an area of preconceived misconceptions, both of which are likely to influence an evaluation of a self-defense claim. Expert testimony can dispel the belief that the child had a reasonable opportunity to escape the battering situation and that the killing was not a result of imminent harm." [Footnotes omitted.]
69 See, for example, Toffel, note 6 at 344: "Pennsylvania, Arizona, and Washington are the exceptional states that have appellate or state supreme court opinions that explicitly state that battering syndrome self-defenses apply to battered men and children. The trend is to remain silent on the issue of whether courts should analogize battered woman syndrome to battered person and battered child syndrome." [Footnote omitted].
70 Id. at 341.
71 Section 563.033, RSMo 1994.
72 Toffel, note 6 at 341.
73 State v. Lannert, 889 S.W.2d 131, 135 (Mo. App. E.D. 1994).
74 Section 563.031, RSMo 1994.
75 State v. Weems, 840 S.W.2d 222 (Mo. banc 1992).
76 Id. at 225.
77 Id. at 226.
78 State v. Williams, 787 S.W.2d 308, 312 (Mo. App. E.D. 1990).
79 Id.
80 Kathee Rebernak Brewer, Missouri's New Law on 'Battered Spouse Syndrome: A Moral Victory, A Partial Solution, 33 St. Louis U.L. Rev. 227 (1988), at 243. [Footnote omitted].
81 787 S.W.2d 308, 313 (Mo. App. E.D. 1990).
82 Id.
83 Id.
84 Brewer, note 80, at 244.
85 Id. [Footnote omitted].
86 Id.
87 The traditional approach to self-defense law may be found in Wayne R. Lafave, Et Al., Criminal Law § 5.7, 454 (2nd ed. 1986): "One who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger."
88 State v. Janes, 850 P.2d 495, 506 (Wash. 1993).
89 Toffel, note 6 at 346. See also Goodwin, note 35 at 456 & n.178. Goodwin writes: "A few states have enacted statutes which address the claims of self defense by battered individuals who kill their abusers. Nine states have codified the admission of expert testimony for battered women who kill. However, only Texas has addressed the issue of admissibility of expert testimony for the battered child who kills." [Goodwin's n.179 omitted; n.178 reads in part: "The nine states include: Louisiana, Texas, California, Maryland, Nevada, Missouri, Ohio, Oklahoma, and Wyoming." (Citation omitted)].
90 Toffel, note 6 at 346.
91 State v. Janes, 850 P.2d 495 (Wash. 1993).
92 Id. at 496.
93 Id.
94 Id.
95 Id.
96 Id.
97 Id.
98 Id.
99 Id.
100 Id.
101 Id.
102 Id.
103 Id.
104 Id.
105 Id.
106 Id.
107 Id. at 497.
108 Id.
109 Id.
110 Id.
111 Id.
112 Id.
113 Id.
114 Id.
115 Id.
116 Id.
117 Id.
118 Id. at 498.
119 Id. at 499.
120 Id.
121 Id.
122 Id.
123 Id.
124 Id.
125 Id. at 500.
126 Id. at 501
127 Id.
128 Id., Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) [Citation in original].
129 Id.
130 Id. at 502.
131 Id.
132 Id.
133 Id. at 503.
134 Id. at 504.
135 Id.
136 Id. at 506.
137 Id. at 503.
138 Id. at 504.
139 Id. at 505.
140 Id.
141 Toufexis, note 8 at 60.
142 Smith, note 11 at 167.
143 Id. at 167-8.
144 Id.
145 Id. at 168.
146 Id. at 167-8.
147 State v. Lannert, 889 S.W.2d 131, 133 (Mo. App. E.D. 1994).
148 Id. at 134.
149 Id. at 132.
150 Id. at 136.
151 Smith, note 11 at 168. Smith notes that the average sentences handed down in parricide cases are "approximately fifteen to twenty years imprisonment." Smith, at 169. [Footnote omitted.]
152 Id.
153 Id.
154 Id.
155 Id. at 170.
156 Id.
157 Id. at 177. Smith says, "When the crimes are viewed in their entire context, most parricide cases contain extenuating circumstances sufficient to justify the reduction of a charge of first degree murder to voluntary manslaughter. With voluntary manslaughter as the crime, both child abuse and homicide are appropriately recognized and discouraged." [Footnotes omitted.]
158 Lauren E. Goldman, Nonconfrontational Killings and the Appropriate Use of Battered Child Syndrome Testimony: The Hazards of Subjective Self-Defense and the Merits of Partial Excuse, 45 Case W. Res. L. Rev. 185 (1994), at 187. "Partial excuse" is a term Goldman uses in her article advocating the practice of reviewing battering evidence in order to reduce the charges filed against an abused-child parricide. The term is used here as a name for the practice.
159 Id. at 224.
160 Id.
161 Charles Patrick Ewing, Battered Women Who Kill: Psychological Self-Defense as Legal Justification 45 (1987). [Footnote omitted.]
162 See § 552.040, RSMo 1994, which provides for persons acquitted of a crime by reason of mental disease or defect to be committed to the custody of the director of the department of mental health.
163 Ewing, note 161, at 55.
164 Goodwin, note 35 at 438. Goodwin further observes: "Subsequent to the killing of his or her parent, the battered child does not pose a threat to society. Battered children have proven to be amenable to psychiatric treatment and thereafter lead productive lives. Rearrest of the child who commits parricide is extremely rare. Where the child has committed parricide as a result of intense pressure from abuse, the source of the problem is removed through the homicide and the parent is no longer a threat." [Footnotes omitted.]
165 Woman Charged in Father's Killing, St. Louis Post-Dispatch, Jul. 5, 1990; Regional News.
166 State v. Lannert, 889 S.W.2d 131, 133 (Mo. App. E.D. 1994).
167 Id.
168 Id.
169 Id.
170 Id.
171 Id.
172 Id.
173 Id.
174 Id.
175 Id.
176 Id.
177 Id.
178 Id.
179 Id.
180 Id.
181 Id.
182 Id.
183 Id.
184 Id.
185 Id.
186 Id.
187 Id.
188 Id.
189 Id.
190 Id. at 134.
191 Id. at 136.
192 Ann Scales Cobbs, Daughters Charged in Murder, St. Louis Post-Dispatch, Jul. 6, 1990, at 1A.
193 Id.
194 Id.
195 Id.
196 William C. Lhotka, 'I Didn't Aim; I Pulled the Trigger' Women Describes Shooting of ather Says She Wanted Abuse to End, St. Louis Post-Dispatch, Oct. 29, 1992, at 3A.
197 Teen to Stand Trial as Adult in the Murder of Her Father, St. Louis Post-Dispatch, Sep. 12, 1990, at 8A.
198 William C. Lhotka, Girl Gets 5 Years in Plot to Murder Her Father, St. Louis Post-Dispatch, Apr. 20,1991, at 4B.
199 William C. Lhotka, Two Daughters Held in Killing Were Dropouts, St. Louis Post-Dispatch, Jul. 7, 1990, at 3A.
200 Id.
201 Id.
202 Cobbs, note 192.
203 William C. Lhotka, Court Battle is Brewing Over Slain Father's Estate Family Doesn't Want Daughters to Get Money, St. Louis Post-Dispatch, Dec. 18, 1995, at 1A.
204 Id.
205 Cobbs, note 192.
206 Id.
207 State v. Lannert, 889 S.W.2d 131, 134 (Mo. App. E.D. 1994). See the discussion of Missouri's battered spouse syndrome defense and § 563.033, RSMo 1994, in Section IV above.
208 State v. Williams, 787 S.W.2d 308, 312 (Mo. App. E.D. 1990).
209 Id.
210 Id.
211 Id.
212 Id.
213 William C. Lhotka, Jury Convicts Daughter of First-Degree Murder, St. Louis Post-Dispatch, Oct. 31, 1992, at 6A.
214 Id.
215 State v. Lannert, 889 S.W.2d 131, 136 (Mo. App. E.D. 1994).
216 Lhotka, note 213.
217 Court Actions, St. Louis Post-Dispatch, Police/Courts (Crime) Column, Dec. 12, 1992, at 10A.
218 Virginia Young, Sentences Cut for 2 Who Killed Husbands, St. Louis Post-Dispatch, Dec. 17, 1992, at 1A.
219 State v. Martin, 666 S.W.2d 895, 897 (Mo. App. E.D. 1984).
220 Id.
221 Id.
222 Id.
223 Id.
224 Id.
225 Id.
226 Id. at 897-8.
227 Id. at 899.
228 Id. at 897.
229 Id. at 901.
230 Young, note 218.
231 Id.
232 Id.
233 Id.
234 Id.
235 Id.
236 State v. Williams, 787 S.W.2d 308, 312 (Mo. App. E.D. 1990).
237 Linda L. Ammons, Discretionary Justice: A Legal and Policy Analysis of a Governor's Use of the Clemency Power in the Cases of Incarcerated Battered Women, 3 J. L. & Pol'y 1 (1994), at 2.
238 Id. at 3-4. [Footnotes omitted.]
239 Id.
240 Samuel P. Stafford II, National Center for State Courts, Clemency: Legal Authority, Procedure and Structure 47 (1977).
241 Id.
242 Id.
243 Ammons, note 237 at 23-4.
244 Id. at 24.
245 Ammons, note 237 at 30-1. Ammons further notes that: "In the eighteenth century, William Blackstone commented on the need for clemency to mitigate the harshness of English law. The founding members of this republic also recognized how the strict rule of law could sometimes work a hardship. Alexander Hamilton gave this rationale for the clemency power, 'The criminal code of every country partakes so much of necessary severity that without an easy access to exception in favor of unfortunate guilt justice would mean a continuance too sanguinary and cruel.' Chief Justice William Howard Taft succinctly articulated the necessity of the clemency power: 'Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford remedy it has always been thought essential in popular governments . . . to vest in some authority other than the courts power to ameliorate or avoid particular criminal judgments.'" [Footnotes omitted.]
246 Young, note 218.
247 Ammons, note 237 at 18.
248 Sacks, note 16, at 351.
249 Id.
250 Toffel, note 6.
251 Id.
252 Goodwin, note 35 at 458 & n.181. Texas is one such state. The Texas battering syndrome evidence statute was first used in a parricide case by Donna Marie Wisener.
253 As of November 1998, a clemency brief is pending for Stacey Lannert before the Missouri Board of Probation and Parole and in the Missouri Governor's Office. [Telephone interview with Stacey's attorney, Ellen Flottman: [November 5, 1998.]
254 Michael Dowd, Battered Women: A Perspective on Injustice, 1 Cardozo Women's L. J. 1 (1993), at 48.
Robert Hegadorn is a third-year law student at the University of Missouri-Columbia School of Law. He wishes to thank Professor Mary Beck of UMC School of Law for her continuing interest and assistance in the preparation of this article.
1999, Robert Hegadorn