Criminal Justice

Self-defense can land domestic-abuse victims in jail

September 14, 2022

Ray Carter

Women in abusive relationships often fall into illegal activity due in part to that relationship, which increases their likelihood of landing in an Oklahoma prison, a range of experts told state lawmakers this week.

And when those women defend themselves from an abuser, officials said the abused woman may face resulting charges that exceed those imposed on the abuser.

“Across the country there’s a conversation going on about whether these crimes should be prosecuted differently than all other kinds of crime, and there are some really good reasons to do that,” said Leigh Goodmark, director of the Gender Violence Clinic at the University of Maryland. “I think one is these are victims of trauma. The people that we are talking about are people who have experienced significant trauma, and that trauma is relevant to what they have then gone on to do.”

“Most women in Oklahoma prisons are survivors of physical and sexual violence and other forms of abuse and neglect,” said Jasmine Sankofa, a policy and research manager at FWD.us. “A study in Oklahoma prisons found that 57 percent of women in prisons experienced sexual abuse as a child. Forty-seven percent experienced physical abuse as a child. And 66 percent had been in (an) abusive relationship within the year before their incarceration.”

Goodmark said the gap between public perception of battered women and the reality often works to the disadvantage of abused women.

“In the context of intimate-partner violence, we have stereotypes of kind-of-blameless victims who are usually portrayed as weak and meek and passive women, and their monstrous perpetrators, who are usually men,” Goodmark said. “But that doesn’t really reflect reality. Many women are in fact imperfect victims. They use drugs. They have mental-health issues. They are, or they are perceived as, angry. They are perceived by others as strong.”

Brenda Golden, an attorney and Muscogee Nation citizen who is also a survivor of abuse, said her personal story shows how abused women are at a disadvantage in the criminal system. Although she is an Air Force veteran and college graduate, Golden said she spent years with an abusive husband.

“My nose is scarred from him slamming my face on the floor and tearing my nose almost off,” Golden recalled.

On one occasion when her husband was abusing her, Golden said she grabbed an ashtray and “busted his head open” with it.

“He quit, but he called the police on me and made a police report that I had abused him,” Golden said. “And it was my word against his.”

She said her husband also kicked her in her stomach when she was pregnant with twins. Golden said she stayed with her husband, in part, because once she had three kids the economic reality of trying to support them on her own was daunting.

The cycle continued until 1991 when her husband attacked Golden in front of her mother and stepfather. When the stepfather stepped in, Golden’s husband attacked him too. At that point, Golden grabbed a knife and stabbed her husband in the leg.

He did not call the police that time, or Golden said she might have faced serious charges. Instead, she was fortunate the stabbing stopped the abuse.

“He left and he never came back,” Golden said. “And I never let him come back because that scared me. It scared me that I had to go to that length.”

Although use of a weapon is often seen as an escalation of violence, Brandon Pasley, chief compliance officer with YWCA Oklahoma City, said many women do so out of necessity.

“We know that most men are bigger and stronger than most women,” Pasley said. “That isn’t always the case, but so often this is an attempt to make up for a differential in power, that reality that one of them far outweighs the other. The use of a weapon may have been an attempt to equalize the situation.”

In the courtroom setting, Golden said the “battered woman syndrome” defense is rarely successful, unless a woman can afford to hire an expert witness to bolster her claim.

“It comes down to monetary resources, financial resources, to get an expert,” Golden said. “And I don’t know of any experts like that in Oklahoma that could meet the test of being an expert in the battered-women’s syndrome.”

Goodmark noted the incentives of the legal system also work against abused women.

“Cases involving criminalized survivors often lead to plea bargains,” Goodmark said. “The research shows us that women plead. Just generally, women plead. They plead to get home to their children. They plead to keep their jobs. They plead because they can’t afford to litigate. And they plead because of the impact of mandatory minimum sentences. Mandatory minimum sentences have given prosecutors enormous leverage in the plea-bargaining process. They allow for prosecutors to essentially say, ‘If you don’t take this plea, and you take the risk of going to trial, you’re looking at a ridiculous number of years if you are convicted.’ And so, so many people decide that they can’t take the chance of litigating—even when they could make a claim of self-defense, even when that claim is pretty strong.”

She said mandatory-minimum laws also prevent judges from having the opportunity to consider prior abuse as a mitigating factor during the sentencing phase, leading to longer sentences for many previously abused women.

However, Kyle Cabelka, district attorney for Comanche and Cotton counties, told lawmakers that prosecutors face significant challenges when dealing with situations like those highlighted in the study.

Once charges are filed, he said communications between a prosecutor and a defendant are legally restricted. In many cases, prosecutors will not know of mitigating circumstances, such as abuse, unless the defendant and her lawyer bring that information forward.

“A large part of the background for us to use as mitigation—so, reasons to recommend, maybe, probation—have to come from the defendant and their counsel,” Cabelka said.

State Rep. Rande Worthen, a Lawton Republican and former prosecutor, echoed that assessment.

“The district attorney is kind of in a quandary,” Worthen said. “Once charges are filed, he’s prohibited from communicating with the defendant, especially if that individual has an attorney.”

In some instances, Cabelka noted there isn’t “a whole lot of collaboration” of the alleged prior abuse. And when prosecutors do pursue charges against an abuser, it is difficult to get a conviction because the abused partner often refuses to testify. Instead, prosecutors must make a case based on either circumstantial evidence or testimony from other witnesses.

“In my office, eight out of 10 domestic-abuse cases we don’t have a cooperating victim,” Cabelka said.

State Rep. Toni Hasenbeck, an Elgin Republican who requested the legislative study, said there is cause for dismay when viewing how victims of abuse fare under current state law.

“It is terribly frustrating that women cannot defend themselves when we are looking at a situation where we are trying to save our lives and save the lives of our children,” Hasenbeck said.