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In recent years, happily, lawmakers, domestic violence activists, and scholars have focused on the right of battered women to be protected from their abusive partners. As part of this trend, some courts have held that a battered woman, especially one who suffers from "battered woman syndrome," who kills her abusive partner while he is asleep, is justified in doing so under the doctrine of self-defense.
But, should the law justify such a killing? As sympathetic as the battered woman's claim is, I will argue that the law should not treat such a killing as proper. To do so requires an expansion of the law of self-defense in a direction we will ultimately regret; and the moral argument that it is right to kill a sleeping man is a morally coarsening principle we should reject.
This does not mean that a battered woman who kills her sleeping abuser should necessarily be convicted of a crime. I will seek to defend the position that, although such homicides are morally and legally wrong, a woman who kills in such circumstances should be allowed to assert a legal excuse--a claim that her conduct is wrong, but that she is not morally to blame. In the past, lawyers who took this position sought to argue that battered women were insane, but I will suggest a defense that lawyers have ignored, which permits the law to protect the sanctity of human life (even that of the abuser), does not treat the battered woman as "crazy," but which also recognizes a potential basis for legal exculpation for the woman, without sending the wrong moral message. And, throughout this Lecture, I will also try to show why we ought to care what moral message we send through the criminal law.