Thursday, November 23, 2017
Martha Ruth Mahoney (University of Miami School of Law) has posted Misunderstanding Judy Norman: Theory As Cause and Consequence on SSRN. Here is the abstract:
Judy Norman’s claim of self-defense is among the best-known and most widely-debated cases in criminal law scholarship. See Norman v. State, 366 S.E.2d 586 (N.C. App. 1988) (granting new trial to allow instruction on self-defense); Norman v. State, 378 S.E.2d 8 (N.C. 1989) (denying instruction on self-defense). The fact that she shot her husband while he slept has been widely understood to prove a lack of imminent threat that would justify self-defense. The sharp contrast between the extreme violence and danger Judy faced and the denial of the self-defense instruction invoked extensive debates among legal scholars about justification and the use of deadly force.
This article reconstructs the facts and evidence in Norman from the transcript and public records. The appellate opinions included most of the important facts, but the transcript adds details important to applying subsequent social science. Factual and theoretical errors in legal scholarship become apparent from a careful review. Misconceptions about battered women caused some of those mistakes, but the main problem has been the attachment of legal scholars to an outdated and simplified concept of Lenore Walker’s “battered woman syndrome” theory and to persistent misunderstandings about “learned helplessness,” a component of that theory. These misconceptions colored both scholars’ reading of Norman and their analysis of self-defense doctrine.
Battered woman syndrome and learned helplessness are terms of art. “Battered woman syndrome” has a different meaning in psychology than in law, where it became a generic term for expert evidence whether or not the expert applied Walker’s theory. “Learned helplessness” is not a literal term and should not be misunderstood as to mean impairment in a defendant.
For decades, social scientists have applied other frameworks to understanding the impact of battering, especially “survivor theory” and “coercive control.” From the mid-1990s, the term “intimate partner violence and its effects” replaced battered woman syndrome and learned helplessness, but syndrome terminology persisted and retained disproportionate influence in legal contexts.
This article illustrates the influence of the “syndrome” framework by examining mistakes scholars have made about the Norman case. Factual errors include turning an afternoon nap into a “midnight” shooting, mistakenly implying that Norman had many hours to find safety. Scholars missed the looming threat of exceptionally violent sex trafficking that Judy Norman described from the witness stand. Many missed the escalation and crisis that led her family to believe the lethal threats made by her husband; they saw her as passive instead of urgently seeking help despite evidence that Judy and some of her family members tried desperately to gain some measure of safety. Scholars also assumed that Lenore Walker’s “battered woman syndrome” was crucial to Judy Norman’s defense, even though the expert witness in the Norman trial applied a “coercive control” framework, not Walker’s syndrome approach. Among social scientists and in some legal usage, “intimate partner violence and its effects” has replaced syndrome terminology. To identify the best contributions in the extensive theoretical debates, we should reread those texts, replacing battered woman syndrome with “intimate partner violence” and replacing learned helplessness with “. . . and its effects.” Freed from stereotypes about helplessness, we can identify the best thought and policy in the debates and evaluate new questions that emerge. From that perspective, this article criticizes the argument that sleep creates a per se rule against justified use of self-defense, explores questions about imminence of threat in violent sex trafficking, and evaluates policy proposals that would change self-defense law.