Battered Woman Syndrome & the Bush Doctrine

The traditional view of the self-defense doctrine states that there is an imminence requirement before one can use deadly force. That is, a person is entitled to use deadly force when the threat of death or great bodily harm is imminent to that person. However, as the casebook Cases and Materials on Criminal Law (4th Ed.), edited by Joshua Dressler, points out on page 535 (believe it or not, I just turned around to see if my Legal Writing professor was standing behind me, ready to shout: “You didn’t Bluebook, you filthy s.o.b.!”) that some are seeking to abandon this requirement in both domestic and international law:  

Should the imminence requirement be abandoned in battered woman cases? President George Bush declared in 2002 that the United States “must be prepared to stop rogue states and their terrorist client before they are able to threaten or use weapons of mass destruction***.” The National Security Strategy of the United States, http://www/nytimes/com/2002/ 09/20/politics/20STEXT_FULL.html. If so-called “preemptive self-defense” is being conducted at the international level, is there any reason to deny the right to battered women to kill their “rogue” and “terrorist” partners before they are able to use deadly force?

Professor Jane Moriarty, while rejecting the Bush Doctrine as too extreme, defends so-called “anticipatory self-defense” (ASD). She writes that “[t]hose who favor ASD in international law do not restrict the doctrine to the moment when the missile is in the air.” Thus, for example “[p]ursuant to international law, ASD may be legitimately invoked if a targeted country has been victimized by prior attacks and learns more attacks are planned. When a prior aggressor threatens to commit future violence, international law treats the threat as real. So should domestic criminal law.” Jane Campbell Moriarty, “While Dangers Gather”: The Bush Preemption Doctrine, Battered Women, Imminence, and Anticipatory Self-Defense, 30 N.Y.U. Rev. Law & Soc. Change 1, 15, 25 (2005).

Referring to this passage, my professor calls upon one student to explain what “The Bush Doctrine” is. The kid explains it in a sentence or two. Then the professor asks him, “According to the doctrine, when should it be employed?” He answers: “Umm…whenever President Bush wants it to be.” At the time it struck me so funny and wise that I had a strong urge to run across the room (that can fit up to 200 people) in order to give him a huge bear hug. I decided against it, however, lest he interprets my approaching as either a threat or, God forbid, an imminent infliction of deadly force…

Currently listening to: Nico – Chelsea Girl