Abuse defense

The abuse defense is a criminal law defense in which the defendant argues that a prior history of abuse justifies violent retaliation. While the term most often refers to instances of child abuse or sexual assault, it also refers more generally to any attempt by the defense to use a syndrome or societal condition to deflect responsibility away from the defendant. Sometimes the concept is referred to as the abuse excuse, in particular by the critics of the idea that guilty people may use past victimization to diminish the responsibility for their crimes.[1] When the abuser is the victim of the crime, as is often the case, the abuse excuse is sometimes used as a way to "put the victim on trial". The Supreme Court of the United States has held on numerous occasions that the defendant should be permitted to present any information that they feel might affect sentencing. Despite this legal precedent, the availability of the abuse defense has been criticized by several legal experts, particularly in the aftermath of the trials of Lorena Bobbitt and the Menendez brothers. Legal scholar Alan Dershowitz has described the abuse excuse as a "lawless invitation to vigilantism".

Definition The abuse defense is "the legal tactic by which criminal defendants claim a history of abuse as an excuse for violent retaliation".[2] In some instances, such as the Bobbitt trial, the supposed abuse occurs shortly before the retaliative act; in such cases, the abuse excuse is raised as a means of claiming temporary insanity or the right of self-defense. In other trials, such as those of the Menendez brothers, the supposed abuse occurs over a prolonged period of time, often beginning during the defendant's childhood; this relates the abuse defense to the concept of diminished capacity. Because the victim of the act is often the person who committed abuse against the defendant in the past, the goal of the abuse excuse is to "put the victim on trial" and show that the abuser "had it coming".[3] [edit]Other responsibility deflection defenses There are more than 40 distinct defenses and syndromes that have been employed by defense attorneys, all of which share the goal of deflecting responsibility for the crime away from the defendant.[4] Some of these defenses seek to relate the defendant's behavior to previously existing medical conditions, such as antisocial personality disorder, fetal alcohol syndrome, and posttraumatic stress disorder. Other defenses seek to attribute the criminal act to the society in which the defendant lives rather than his or her own choices; the pornography defense asserts that the proliferation of pornography causes men to commit acts of sexual violence, and urban survival syndrome claims that violent conditions in a city or neighborhood may justify violent actions by a particular individual.[5] [edit]Prevalence A growing concern among the American public is that guilty criminals are too often excused for their crimes or are given unsuitably short sentences, a problem that is exacerbated by the use of the abuse defense. Legal experts counter that excuse defenses either serve an insignificant role in the trial or are entirely unsuccessful.[6] During the trial of Dan White, who assassinated gay rights advocates George Moscone and Harvey Milk, one expert testimony mentioned that the consumption of large amounts of junk food may have intensified White's state of depression prior to the murders. It was widely reported that White's counsel had earned him a reduced sentence by employing the so-called "Twinkie defense", despite the fact that the subject of sugar intoxication was only briefly touched upon during the trial.[7] Although the American public often complains about the supposed frequency with which defendants use the abuse defense, the reality is that it is generally only used in high-profile cases. In order for the abuse defense to be employed effectively, it is necessary for the defense to produce expert testimony on the defendant's behalf. Most defendants are unable to pay for such testimony; as such, qualified experts tend to provide advocating testimony only in those cases in which the defendant is wealthy or is supported by public interest groups.[8] The trials of Lorena Bobbitt and the Menendez brothers were two high-profile cases that are often cited as examples of the abuse excuse in action.