SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued September 28, 2004 -- Decided April 13, 2005
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court addresses the appropriate use of battered woman syndrome expert testimony in respect of a duress defense under N.J.S.A. 2C:2-9.
In March 2001, B.H. left her husband, S.H., and took their two daughters
to a women’s shelter. While at the shelter, B.H. told a counselor that
in 1999 her husband had forced her to have sexual intercourse with her
then seven-year-old stepson, L.H. At the counselor’s urging, B.H. reported the incident to
the Division of Youth and Family Services (DYFS). DYFS conducted an investigation of
the home and, eventually, B.H. was contacted by an investigator from the Ocean
County Prosecutor’s Office. She voluntarily came to police headquarters and gave a statement
after being administered Miranda rights. B.H. admitted to having engaged in sexual intercourse
with her stepson while her husband watched. In her statement, B.H. also told
investigators that her husband, S.H., had physically and sexually assaulted her at other
times but denied that he threatened her with any violence on the day
of the incident with her stepson. B.H. was arrested and charged with first-degree
aggravated sexual assault (count I) and second-degree endangering the welfare of a child
(count II).
At trial, B.H.’s testimony differed from her prior statement to police. At trial,
she claimed S.H. had threatened her during the incident. B.H. stated that she
lied in her earlier statement because S.H. told her not to reveal his
role in the incident. B.H. also testified about earlier incidents of physical, sexual,
and emotional abuse that S.H. inflicted on her almost from the inception of
and continuing throughout their relationship.
Defense counsel informed the trial court that B.H. intended to present a duress
defense and that she would rely on the testimony of Dr. Roger Raftery,
a licensed psychologist with expertise in forensic psychology. Following a Rule 104 hearing,
the trial court authorized limited testimony by Dr. Raftery on battered woman syndrome.
Dr. Raftery testified before the jury that battered woman syndrome is used in
the defense of criminal conduct to explain why a woman stays in an
abusive relationship and why she would continue to live with her abuser. He
also testified that the syndrome explains why an abused woman may engage in
violent behavior towards her abuser and that B.H. was a battered woman. The
State’s expert testified that he was unaware of any case where a battered
woman assaulted a third person; that battered woman syndrome evidence was not useful
in such a case; and that he could not conclude that B.H. was
a battered woman at the time the incident occurred with L.H.
The issue in this case centers on the limitation the trial court placed
in its instruction to the jury on it’s consideration of the expert testimony
on battered woman syndrome. The court limited the testimony on battered woman syndrome
only to clear up any misconceptions concerning the activities of battered women and
to understand a battered woman’s state of mind. The limitation allowed the jury
to determine if B.H. recklessly placed herself in the situation. B.H. objected to
this limitation of the evidence but the court declined to alter its charge.
The jury eventually convicted B.H. on both counts and she was sentenced to
a custodial term of seven years.
On appeal, the Appellate Division reversed, finding that the trial court erred when
it limited the battered woman syndrome testimony to the question of whether B.H.
acted recklessly by placing herself in a situation in which it was probable
that she would be subjected to duress. The panel concluded that when evaluating
a claim of duress, the jury must be permitted to consider the battered
woman syndrome evidence in order to understand the nature and extent of the
threat posed to B.H. by her batterer, whether she had an honest and
reasonable fear, and whether she was able to resist the threat. The Appellate
Division directed that, on remand, the jury must not be prevented from considering
battered woman syndrome evidence when assessing the reasonableness of B.H.’s conduct toward L.H.
in response to the alleged coercion.
The Supreme Court granted certification.
HELD: In light of the particular requirements of the duress statute, N.J.S.A. 2C:2-9,
courts must apply the standard of a ‘person of reasonable firmness” in determining
whether duress excuses criminal conduct, and battered woman syndrome expert testimony is not
relevant to that analysis. Battered woman syndrome evidence is relevant to a defendant’s
subjective perception of a threat from her abuser and, in that respect, can
be relevant to her credibility. Such evidence also aids the jury in explaining
why the defendant would remain with her abuser and, therefore, why she should
not be perceived as acting recklessly.
1. Battered woman syndrome describes a collection of common behavioral and psychological characteristics
exhibited in women who repeatedly are physically and emotionally abused over a prolonged
period of time by a dominant male figure in their lives. Such evidence
has been admitted to support a claim of self-defense and to assist juries
in related credibility determinations by explaining why an abused woman would continue to
live with her abuser. (Pp. 11-15)
2. The statutory defense of duress is an affirmative defense, placing the burden
on the defendant to come forward with some evidence of duress and the
burden of proof on the State to disprove the affirmative defense beyond a
reasonable doubt. Under the duress statute, a defendant is not excused from committing
a criminal act affecting an innocent person unless the threat of coercion is
sufficient that “a person of reasonable firmness in his situation would have been
unable to resist.” The idiosyncratic ability of a defendant not to withstand a
particular coercive threat does not control nor does the person’s subjective psychological incapacity
to resist a coercive threat. Rather, the coercive threat must be sufficiently grave
and severe as to similarly coerce a non-heroic, but reasonably firm, person into
criminal conduct. (Pp. 15-24)
3. A successful duress claim must satisfy two distinct components. First, the defendant
must be coerced into the criminal action by asserting an “excusing condition.” This
condition is subjective because the defendant must actually be influenced by it. Second,
a defendant’s level of resistance to the particular threat must meet community standards
of reasonableness, an objective standard of the “person of reasonable firmness.” The defendant
is neither held to the standard of heroism nor allowed to rely on
his or her idiosyncratic mental and emotional weaknesses. Before satisfying those two components,
however, the defendant must satisfy the threshold requirement that she has not recklessly
placed herself in a situation in which it was probable that she would
be subjected to duress. If the defendant has so acted, the defense of
duress is unavailable. (Pp. 24-28)
4. Because battered woman’s syndrome evidence is beyond the ken of the average
juror, expert witness testimony is appropriate on the issue of the battered woman’s
subjective fear and her inability to leave her abuser. In this case, battered
woman’s syndrome evidence was admissible and relevant to assist the jury with its
assessment of B.H.’s recklessness. (Pp. 28-31)
5. Expert testimony about battered woman syndrome is relevant to the requirement in
the duress statute that the jury be convinced that the defendant honestly believes
that there is an imminent threat of danger. Thus, it was error not
to have permitted the jury to hear evidence about battered woman’s syndrome in
connection with that state-of-mind component of B.H.’s claim of duress. Similarly, the jury
instruction was flawed because the jury was not told that it could consider
battered woman syndrome expert testimony when assessing the sincerity of B.H.’s perception of
a coercive threat. (Pp. 31-35)
6. The jury must be convinced that the defendant experienced a coercion that
a person of reasonable firmness in that situation would have been unable to
withstand. Because this necessitates an objective standard for evaluation of the defendant’s conduct,
there is no place for battered woman syndrome evidence in that assessment. Therefore,
the trial court correctly instructed the jury that the battered woman syndrome evidence
was not to be used to determine whether a person of reasonable firmness
in B.H.’s situation would have been unable to resist. (Pp. 35-38)
7. In this case, the battered woman syndrome evidence admitted at trial was
inappropriately restricted. The trial court’s instruction that the expert testimony could be used
only for evaluating B.H.’s recklessness was too narrow. Thus, the Court agrees with
the Appellate Division that B.H.’s conviction must be reversed. However, to the extent
that the Appellate Division further held that the evidence may be used to
aid the jury in assessing the objective reasonableness of B.H.’s conduct, the Court
disagrees and rejects that portion of the panel’s direction to the trial court
on remand. (Pp. 38-40)
Judgment of the Appellate Division is AFFIRMED AS MODIFIED and the matter is
REMANDED for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in
JUSTICE LaVECCHIA’S opinion.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
B.H.,
Defendant-Respondent.
Argued September 28, 2004 – Decided April 13, 2005
On certification to the Superior Court, Appellate Division, whose opinion is reported at
364 N.J. Super. 171 (2003).
Maura K. Tully, Deputy Attorney General, argued the cause for appellant (Peter C.
Harvey, Attorney General of New Jersey,
attorney).
Michael J. Confusione, Designated Counsel, argued the cause for respondent (Yvonne Smith Segars,
Public Defender, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
A jury convicted defendant, B.H., of first-degree aggravated sexual assault and third-degree endangering
the welfare of a child, for having engaged in sexual intercourse with her
seven-year-old stepson. Defendant was convicted, notwithstanding her defense that she was a battered
wife who participated in the sexual act under duress exerted by her husband.
The trial court permitted defendant to present expert testimony about battered woman syndrome
See footnote 1
but restricted its content and use. On appeal, the Appellate Division disagreed with
the limitations placed on that evidence and reversed defendant’s conviction. State v. B.H.,
364 N.J. Super. 171 (2003). We granted certification,
179 N.J. 311 (2004), to
address the appropriate use of battered woman syndrome expert testimony in respect of
a duress defense under N.J.S.A. 2C:2-9.
In March of 2001, B.H. left her husband, S.H., and took their two young daughters to a women’s shelter. While there, she informed a counselor that in 1999 her husband had forced her to have sexual intercourse with her then seven-year-old stepson, L.H. At the counselor’s urging, she reported the incident to the Division of Youth and Family Services (DYFS); however, she reunited with her husband when she left the shelter.
DYFS promptly conducted an investigation of the home, and an investigator from the Ocean County Prosecutor’s Office contacted B.H. At the investigator’s request, B.H. agreed to be interviewed. She appeared voluntarily at police headquarters and was administered Miranda See footnote 2 warnings. She then talked with investigators for approximately an hour before making a taped statement in which she admitted to having engaged in sexual intercourse with her stepson while her husband watched.
In her statement, B.H. told the investigators that her husband, S.H., had physically and sexually assaulted her on other occasions but she denied that he had threatened her with any violence on the day that the incident with her stepson took place.
Q. Did he threaten you in any way?
A. At one point when I said that I didn’t think it was
a good idea, he said that he would leave me if I didn’t.
* * *
Q. When this happened, when you had sex with [L.H.] . . .
were you, at that point, ever afraid of [S.H.] and what he might
do to you if you didn’t have sex with [L.H.]?
A. Like I said, he threatened to leave me and I, I love
him and I, I don’t (inaudible).
Q. Did, what I mean by threatened is did he ever threaten you
physically to do physical harm at that point?
A. No.
Q. Did he have any knives on him?
A. No.
According to B.H., S.H. justified the intercourse as something that would be “good”
for her to do with L.H., “that it would help [them] get along
better.” B.H. was arrested and charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1)
(count I), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count
II).
See footnote 3
At trial it was brought out that in July of 1999, B.H. and
S.H. were living in a motel with their infant daughter. S.H.’s son, L.H.,
was spending the weekend with them, as he frequently did. Sometime during the
afternoon, L.H. entered the motel room and discovered his father and B.H. having
sexual intercourse on the bed. S.H., having noticed that his son was observing
them, told L.H. to lower his pants and placed the child on top
of B.H., who lay naked with her legs apart. In accordance with S.H.’s
directions, L.H. engaged in sexual intercourse with B.H. for several minutes. B.H. did
not protest or attempt to leave, although she claimed that she remained passive
during the sexual act. However, in her trial testimony, her description of what
had happened that afternoon differed from her prior statement to police. She now
claimed that S.H. had threatened her.
He had his hand at my throat. He wouldn’t let me off the
bed. And I told him that I didn’t want to do this, that
I was not going to do this. And he said that if I
didn’t go through with this, that he would make me pay and that
I would never see my daughter again.
B.H. said that she lied in her earlier statement about S.H. because “at
that point [S.H.] had already gotten into [her] head again,” and he had
instructed her not to reveal his role in the incident.
B.H. also testified about earlier incidents of physical, sexual, and emotional abuse that
S.H. inflicted on her. She described a relationship with S.H. that involved physical
violence (she claimed to be beaten about her breasts where bruises would not
be visible to others, and choked until she would almost pass out) and
sexually violent practices that involved recurrent incidents of rape in various forms (described
by one expert who interviewed her as “bizarre” sexual practices). The violence began
early in the relationship. B.H. was nineteen years of age when she met
S.H. She claimed that the first abusive incident occurred not long thereafter, when
the two began to live together. In that encounter, S.H. held an ax
to B.H.’s throat and, over an extended period of time, repeatedly raped her
and performed other acts of a humiliating nature on her. Other incidents that
need not be detailed similarly involved threats, physical violence, and violent sexual practices
that B.H. also claimed to have endured from S.H. According to B.H., the
abuse continued throughout their relationship, except for a short period of time when
S.H. was on medication and in therapy.
Defense counsel informed the trial court that B.H. intended to present a duress
defense and that she would rely on the testimony of Dr. Roger Raftery,
a licensed psychologist with expertise in forensic psychology. After B.H. had been charged
with the offenses involving L.H., Dr. Raftery had been retained by DYFS to
evaluate her for the purpose of determining whether she should be allowed to
have contact with her children. Following a Rule 104 hearing, the trial court
authorized limited testimony by Dr. Raftery on battered woman syndrome.
See footnote 4
Before the jury, Dr. Raftery testified that battered woman syndrome is used in
the defense of criminal conduct to explain why a woman stays in an
abusive relationship and why she would continue to live with her abuser. He
also stated that the syndrome explains why an abused woman may engage in
violent behavior toward her abuser, such as killing or assaulting him.
Finally, he opined that “[B.H.] is a battered woman, and [that] she meets
what we would know as the so-called criteria for battered woman syndrome.”
In rebuttal, the State presented Dr. Timothy J. Michals, a licensed physician specializing
in psychiatry and forensic psychiatry. He explained to the jury that battered woman
syndrome is not a disease or disorder recognized as a psychiatric diagnosis, but
rather is a theory employed in legal contexts to explain the interaction between
the batterer and the battered woman. He stated that in his thirty years
of practice he was unaware of any circumstance in which a battered woman
had assaulted a third party at the direction of her batterer and that
the syndrome was not useful in situations in which the woman harms a
third person. In his view, it is helpful only in those cases in
which an abused woman reacts to her abuser by harming him. Dr. Michals
opined that B.H. was not suffering from battered woman syndrome in respect of
the incident involving L.H. because: 1) there was a third party victim involved
in this crime; 2) B.H. did not mention in her statement to police
that she was being battered at the time of the incident; and 3)
when interviewed by Dr. Michals, B.H.’s description of what had happened differed from
what she had told the police. Moreover, he testified that he could not
even form the conclusion that B.H. was a “battered woman” at the time
the incident with L.H. occurred.
When it was time to instruct the jury on the defense of duress,
the trial court identified the following factors from the model charge for the
jury to consider: 1) the immediacy of the threat, specifically whether the force
or threat of force posed a danger of present, imminent, and impending harm
to the defendant or her daughter; 2) the gravity of the harm; 3)
the seriousness of the crime that was committed; 4) the age, health, size,
and mental and physical condition of both the defendant and the person alleged
to have coerced her; 5) the possibility for escape or resistance; and 6)
the opportunity for seeking assistance from officials. The dispute in this matter focuses
on the following limitation that the court placed on the jury’s consideration of
the expert testimony on battered woman syndrome. The court stated
Now, remember, the standard utilized here is that which a person of reasonable
firmness in the defendant’s situation would have been unable to resist. . .
. [T]he defense of duress is unavailable to a defendant if you find
that she recklessly placed herself in a situation that it was probable that
she would be subjected to duress.
Now with regard to this issue, that is whether the defendant recklessly placed herself in the situation, I have allowed testimony concerning battered woman syndrome. You may or may not determine that the defendant was afflicted with this condition. That is one of the many factual issues that are solely within your province.
Should you determine that she was so afflicted, that does not establish that
she acted under duress. The sole purpose for which that evidence is offered
to you is to explain why the defendant continued to live with her
husband and why she hadn’t left him. It may be considered, if you
find it credible, on the issue of recklessness.
The experts’ testimony, then regarding battered woman syndrome was not offered to establish
that a person of reasonable firmness in the defendant’s situation would have been
unable to resist, but, rather, to clear up any misconceptions that you may
have concerning the activities of battered women, and to understand a battered woman’s
state of mind.
[(Emphasis added).]
B.H. objected to the limitation on the battered woman syndrome evidence. The court
declined to adjust its charge and, as noted, the jury convicted B.H. of
first-degree aggravated sexual assault (Count One) and third-degree endangering the welfare of a
child (as a lesser-included charge on Count Two). She was sentenced on Count
One as if she had been convicted of a second-degree offense, and given
a custodial term of seven years. She was sentenced to a concurrent five-year
custodial term on Count Two.
In reversing defendant’s conviction, the Appellate Division held that the trial court erred
when it limited the battered woman syndrome testimony to the question of whether
defendant acted recklessly by placing herself in a situation in which it was
probable that she would be subjected to duress. B.H., supra, 364 N.J. Super.
at 187. See N.J.S.A. 2C:2-9b. Specifically, the court stated that in respect of
battered woman syndrome evidence the defense of duress was analogous to the justification
of self-defense, and that in either setting the jury could consider expert evidence
about the syndrome for multiple purposes. B.H., supra, 364 N.J. Super. at 184.
Reasoning from State v. Kelly,
97 N.J. 178 (1984), the panel concluded that,
when evaluating a claim of duress, the jury must be permitted to consider
the battered woman syndrome evidence in order to understand the nature and extent
of the threat posed to the defendant by her batterer, whether the defendant
had an honest and reasonable fear, and whether the defendant was able to
resist the threat. B.H., supra, 364 N.J. Super. at 186. Lastly, the court
directed that, on remand, the jury must not be prevented from considering battered
woman syndrome evidence when assessing the reasonableness of B.H.’s conduct toward L.H. in
response to the alleged coercion. Ibid.
II.
A.
As we acknowledged in our decision in State v. Kelly, supra, 97 N.J.
at 192-96, “battered woman syndrome” describes a collection of common behavioral and psychological
characteristics exhibited in women who repeatedly are physically and emotionally abused over a
prolonged length of time by the dominant male figure in their lives. See
generally Lenore E. A. Walker, Battered Women Syndrome and Self-Defense 6 Notre Dame
J.L. Ethics & Pub. Pol’y 321, 326-27 (1992). The syndrome has become widely
accepted as admissible evidence in self-defense cases because it has been determined to
be useful in explaining conduct exhibited by battered women toward their abusers. Id.
at 328-29. Although “battered woman syndrome” is not a listed psychological “syndrome” in
the Diagnostic and Statistical Manuel of Mental Disorders, the experience of being battered
is mentioned as a potential triggering event for Post Traumatic Stress Disorder (PTSD).
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 463-68
(4th ed. text rev. 2000). See also Beth I.Z. Boland, Battered Women Who
Act Under Duress,
28 New Eng. L. Rev. 603, 604 n.5 (1994) (stating
that “the syndrome is linked diagnostically with responses to prolonged exposure to various
forms of abuse, particularly the experiences of prisoners of war and hostages, where
the primary mental impact on the victim is accommodating behavior.”). Some have referred
to it as a “sub-category” or “subclass” of PTSD. Walker, supra, 6 Notre
Dame J.L. Ethics & Pub. Pol’y at 327; Boland, supra,
28 New Eng.
L. Rev. at 604 n.5. See also State v. Riker,
869 P.2d 43,
47 (Wash. 1994).
As social scientists have observed from studies of common experiences of battered women,
battered woman syndrome advances our understanding of why a woman remains in an
abusive relationship despite being subjected to repeated acts of abuse. Walker, The Battered
Woman Syndrome, supra, at 330. According to Dr. Walker’s thesis, a relationship that
is characterized by physical and psychological abuse visited upon the woman by the
dominant male figure in her life tends to follow stages (the “cycle of
violence”) that start with a tension-building phase, followed by an acute battering incident,
and then a loving-contrition phase. Ibid. After the cycle of violence repeats itself
several times, learned helplessness may set in, and the abused woman may become
conditioned into believing that she is powerless to escape from the abuse. Ibid.
Learned helplessness, often in combination with the social isolation and economic deprivation that
typifies the circumstances of such women, results in preventing the battered woman from
leaving her abuser. Kelly Grace Monacella, Comment, Supporting a Defense of Duress: The
Admissibility of Battered Woman Syndrome,
70 Temp. L. Rev. 699, 709-11 (1997). Women
suffering from battered woman syndrome typically have a poor self-image and low self-esteem.
Id. at 704. They tend to accept responsibility for the actions of their
abusers, and often have psychological problems, including depression. Ibid. As we stated in
Kelly, “[o]nly by understanding these unique pressures that force battered women to remain
with their mates, despite their long-standing and reasonable fear of severe bodily harm
and the isolation that being a battered woman creates, can a battered woman’s
state of mind be accurately and fairly understood.” Supra, 97 N.J. at 196.
B.
In Kelly, we described the characteristics of battered woman syndrome in establishing its
use in the context of self-defense. Ibid. As noted, to some degree, most
jurisdictions accept battered woman syndrome evidence to support a claim of self-defense. See
People v. Romero,
13 Cal. Rptr.2d 332, 337 n.8 (Ct. of App. 1993).
See generally 2 David L. Faigman, et. al., Modern Scientific Evidence: The Law
and Science of Expert Testimony § 11-1-1.3 (2d ed. 2003).
The New Jersey Penal Code provides that “the use of force upon or
toward another person is justifiable when the actor reasonably believes that such force
is immediately necessary for the purpose of protecting himself against the use of
unlawful force by such other person on the present occasion.” N.J.S.A. 2C:3-4a. Kelly
examined the relevancy of battered woman syndrome expert testimony to the state of
mind assessment in a self-defense claim. Id. at 200. Because a defendant’s credibility
is crucial in a claim of self-defense, we found that
[s]pecifically, by showing that [defendant’s] experience, although concededly difficult to comprehend, was common
to that of other women who had been in similarly abusive relationships, [the
expert] would have helped the jury understand that [defendant] could have honestly feared
that she would suffer serious bodily harm from her husband's attacks, yet still
remain with him. This, in turn, would support [defendant’s] testimony about her state
of mind (that is, that she honestly feared serious bodily harm) at the
time of the [incident].
[Id. at 202 (emphasis added).]
We stated our expectation that the testimony would clarify and refute myths associated
with battered women, and thus, would assist the jury in its determination of
the honesty of a defendant’s belief that deadly force was necessary to protect
herself against her abuser. Id. at 206-07. See State v. Gartland,
149 N.J. 456, 472-73 (1997) (reiterating that expert testimony is admissible to help jury overcome
common misconceptions about battered women when evaluating defendant’s belief about need for deadly
force in self-defense); see also State v. J.Q.,
130 N.J. 554, 580 (1993)
(emphasizing circumscribed uses of syndrome evidence).
In the wake of Kelly, battered woman syndrome evidence has been admitted to
support a claim of self-defense and to assist juries in related credibility determinations
by explaining why an abused woman would continue to live with an abuser.
See State v. Townsend,
374 N.J. Super. 25, 53 (App. Div.) (chronicling use
of battered woman syndrome evidence to support credibility of defendant claiming self-defense, as
well as to support credibility of female victim), certif. granted ___ N.J. ___
(2005); State v. Ellis,
280 N.J. Super. 533, 545 (App. Div. 1995) (requiring
limiting instruction to ensure that jury did not consider battered woman syndrome expert
testimony as evidence of abuser’s guilt, but rather only for purposes of assessing
victim’s credibility). In this matter of first impression, we consider its admission and
use in criminal trials in respect of the affirmative defense of duress.
III.
A.
Originally a common law defense, duress was described by Blackstone as “threats and
menaces, which induce a fear of death or other bodily harm, and which
take away for that reason the guilt of many crimes and misdemeanors.”
4
W.
Blackstone,
Commentaries on the Laws of England *30. Historically, fear of immediate
threat of death or serious bodily harm supported duress as a common law
defense. See State v. Toscano,
74 N.J. 421, 433-34 (1977). In Toscano, we
discussed the common law principles undergirding duress because, at the time, New Jersey
had no statute recognizing duress as a defense to a criminal charge.
At common law the defense of duress was recognized only when the alleged
coercion involved a use or threat of harm which is "present, imminent and
pending" and "of such a nature as to induce a well grounded apprehension
of death or serious bodily harm if the act is not done."
It was commonly said that duress does not excuse the killing of an
innocent person even if the accused acted in response to immediate threats. Aside
from this exception, however, duress was permitted as a defense to prosecution for
a range of serious offenses . . . and many lesser crimes .
. . .
To excuse a crime, the threatened injury must induce "such a fear as
a man of ordinary fortitude and courage might justly yield to."
[Id. at 432-34 (citations omitted).]
The issue in Toscano concerned whether it was necessary to allege a
present, imminent, and impending danger of harm to claim the excuse of duress.
We rejected the common law’s rigid requirement of immediacy of death or serious
injury, id. at 436-37, and instead allowed that
[u]nder some circumstances, the commission of a minor criminal offense should be excusable
even if the coercive agent does not use or threaten force which is
likely to result in death or "serious" bodily injury. Similarly, it is possible
that authorities might not be able to prevent a threat of future harm
from eventually being carried out. . . . Warnings of future injury or
death will be all the more powerful if the prospective victim is another
person, such as a spouse or child, whose safety means more to the
threatened person than his own well-being. Finally, as the drafters of the Model
Penal Code observed, "long and wasting pressure may break down resistance more effectively
than a threat of immediate destruction."
[Ibid. (citations omitted).]
As the last comment suggests, it was important to the Court in determining
to reject a rigid requirement of “immediacy” that the holding coincide with the
approach being taken in respect to duress in the then-proposed New Jersey Penal
Code (Code). Id. at 442. Justice Pashman engaged in a lengthy discussion of
the analytic underpinnings of the pending enactment, id. at 437-42, and framed the
Court’s holding in terms that followed the language of the proposed Code, modeled
after the approach recommended by the American Law Institute in the Model Penal
Code (MPC). Id. at 442. See
American Law Institute Model Penal Code and
Commentaries, §2.09 (1985).
Toscano foreshadowed many of the concerns expressed in later treatises about the public
policies implicated by the recognition of duress as a defense. See Joshua Dressler,
Exegesis of the Law of Duress: Justifyiing the Excuse and Searching for Its
Proper Limits,
62 S. Cal. L. Rev. 1331, 1366 (1989) (stating that “[a]t
its core, the defense of duress requires us to determine what conduct we,
a society of individual members of the human race, may legitimately expect of
our fellow threatened humans”). Indeed, the MPC, in developing the defense, determined that
duress had to be treated differently and kept exceptional because of the moral
implications inherent in excusing a defendant who “rationally and intentionally” chooses to commit
an unlawful act that may actually include harming an innocent third party. Laura
K. Dore, Downward Adjustment and the Slippery Slope: The Use of Duress in
Defense of Battered Offenders,
56 Ohio St. L.J. 665, 747-48 and 747 n.339
(1995) (recognizing public policy considerations that undergirded determination to “limit the defense to
the most serious types of pressures to commit crime”); see also Dressler, supra,
62 S. Cal. L. Rev. at 1367 (noting “line-drawing” nature of duress and
that “[a]ll that can be said with certainty is that, assuming the threat
remains constant, our willingness to excuse an actor doubtlessly recedes as the offense
becomes more heinous” and that only “[s]ome, but not all, persons who are
forced into a corner and wrongfully choose to harm innocent persons rather than
accept the threatened consequences will be excused”).
Subsequent to the Toscano decision, the Legislature codified duress as an affirmative defense,
“
plac[ing] the burden on the defendant to come forward with some evidence of
[duress] and the burden of proof on the State to disprove the affirmative
defense beyond a reasonable doubt.”
State v. Romero,
355 N.J. Super. 21, 35-36
(App. Div. 2002). N.J.S.A. 2C:2-9 provides:
a. Subject to subsection b. of this section, it is an affirmative defense
that the actor engaged in the conduct charged to constitute an offense because
he was coerced to do so by the use of, or a threat
to use, unlawful force against his person or the person of another, which
a person of reasonable firmness in his situation would have been unable to
resist.
b. The defense provided by this section is unavailable if the actor recklessly
placed himself in a situation in which it was probable that he would
be subjected to duress. The defense is also unavailable if he was criminally
negligent in placing himself in such a situation, whenever criminal negligence suffices to
establish culpability for the offense charged. In a prosecution for murder, the defense
is only available to reduce the degree of the crime to manslaughter.
c. It is not a defense that a woman acted on the command
of her husband, unless she acted under such coercion as would establish a
defense under this section. The presumption that a woman, acting in the presence
of her husband, is coerced is abolished.
The enactment mirrors the proposal submitted to the Legislature by the New Jersey
Criminal Law Revision Commission (Commission), and, as noted, follows identically the language set
forth in the MPC.
See footnote 5
B.
Thus has duress been developed and accepted into the law of our State.
In light of the defense’s moral underpinnings, however, its use must be carefully
circumscribed. Duress is, at its core, a normative defense. See generally Dressler, supra,
62 S. Cal. L. Rev. at 1373; Dore, supra, 56 Ohio St. L.J.
at 741-43. The statute states explicitly the norm that is expected: a defendant
is not excused for committing a criminal act affecting an innocent person unless
the threat of coercion is sufficient that “a person of reasonable firmness in
his situation would have been unable to resist.” N.J.S.A. 2C:2-9a.
In the commentary that accompanied the Final Report of the Commission, the Commission
cites the MPC to explain that “[t]he Code rejects the view . .
. , expounded by some, that one should look to the actor’s ability
to withstand the coercion. Instead, it would only allow coercion which ‘a person
of reasonable firmness in [the defendant’s] situation would have been unable to resist.’”
II The New Jersey Penal Code, Final Report of the New Jersey Criminal
Law Revision Commission, cmt. 3 on 2C:2-9 at 71 (1971) (Commission Report).
See footnote 6
By
way of further explanation, the Commentary adds that the “standard established by the
Code is not wholly external” in that the defense allows consideration of the
defendant’s “situation.” Ibid. The fact finder may “take account of stark, tangible factors
which differentiate the actor from another such as his size or strength or
age or health -- but not [] matters of temperament.” Ibid.
As explained in Toscano, supra, the MPC drafters considered the conflicting views of
commentators on the subject, some suggesting that the defense should be designed to
further the criminal law’s deterrence function by encouraging persons to act against their
self-interest when a substantial percentage of persons in similar situations would do so,
although detractors were skeptical that such a strict rule would act as a
deterrence. 74 N.J. at 437-38. Others “advocated a flexible rule which would allow
a jury to consider whether the accused actually lost his capacity to act
in accordance with ‘his own desire, or motivation, or will’ under the pressure
of real or imagined forces.” Id. at 438. The latter rule would have
involved a subjective assessment, “focus[ing] on the weaknesses and strengths of a particular
defendant, and his subjective reaction to unlawful demands. Thus, [under that approach,] the
‘standard of heroism’ of the common law would give way, not to a
‘reasonable person’ standard, but to a set of expectations based on the defendant’s
character and situation.” Id. at 438-39.
Justice Pashman concluded in Toscano that “[t]he drafters of the Model Penal Code
and the New Jersey Penal Code sought to steer a middle course between
these two positions by focusing on whether the standard imposed upon the accused
was one with which ‘normal members of the community will be able to
comply . . . .” Id. at 439. That conclusion is shared by
others commenting on the objective nature of the “person of reasonable firmness” standard
derived from the Model Penal Code.
[T]he normative component of duress excuses only those actors who demonstrate the level
of fortitude that society can fairly expect of its morally responsible members. The
very rationale of duress thus requires that an accused be judged against some
objective standard, regardless of her own capacities or constitutional weaknesses. That is, whatever
the merits of completely individualizing other excuses, the defense of duress depends on
maintaining some objective standard external to the character and capacities of the individual
actor.
[Dore, supra,
56 Ohio St. L.J. at 748-49.]
The Toscano Court’s conclusion draws further support from the Commission Report’s discussion that
compared the objective standard contemplated for the “person of reasonable firmness” to the
objective standard utilized when assessing whether there exists adequate provocation for a passion/provocation
defense to murder. The Report explained that “the [proposed] Code’s position is similar
to existing law on the provocation formula to reduce murder to manslaughter. See
State v. King,
37 N.J. 285 (1962); State v. McAllister,
41 N.J. 342
(1964).” Commission Report, cmt. 3 on 2C:2-7 at 71. The provocation formula in
place at the time of the Commission’s Report applied an “‘ordinary man’ test
as the objective standard [for provocation] against which to measure the subjective fact
of passion.” McAllister, supra, 41 N.J. at 353. We had rejected a subjective
test for measuring the effect of an allegedly impassioning event, and instead presupposed
an “ordinary” man’s reaction to the event, which “contemplates a person without ‘serious
mental and emotional defects.’” Id. at 353-54. The individual mental and emotional capacities
of a person are therefore
inapplicable when assessing the objective “adequate provocation” standard
.
Ibid. See State v. Robinson,
136 N.J. 476, 491-92 (1994); see also State
v. Mauricio,
117 N.J. 402, 411 (1990) (citing State v. Grunow,
102 N.J. 133, 140-42 (1986) for discussion of legislative rejection of more subjective test for
“adequate provocation,” and determination to hew to common law objective standard).
Similarly, the Code established a duress defense that measures the sufficiency of a
threat of coercion against an objective standard that serves society’s interests in carefully
circumscribing the defense’s use: the person of reasonable firmness. N.J.S.A. 2C:2-9a. The idiosyncratic
ability of a defendant not to withstand a particular coercive threat does not
control. That person’s subjective psychological incapacity to resist a coercive threat does not
set the bar. Rather, in keeping with the normative function of duress, “[t]he
coercive threat must be sufficiently grave and severe as to similarly coerce a
non-heroic, but reasonably firm, person into criminal conduct.” Dore, supra,
56 Ohio St.
L.J. at 743. Stated otherwise, under duress “the actor should be excused only
if he attained or reflected society’s legitimate expectations of moral strength.” Dressler, supra,
62 S. Cal. L. Rev. at 1334.
C.
Under N.J.S.A. 2C:2-9a, a successful duress claim must satisfy two distinct components. See
generally 2 Paul H. Robinson, Criminal Law Defenses § 177 (1984). The first is
that the defendant must be coerced into the criminal action by the asserted
“excusing condition.” Ibid. The “excusing condition” has been described as subjective because the
defendant actually must have been influenced by it. Ibid. That assessment necessarily takes
into account the defendant’s state of mind. The defendant actually must believe in
and be frightened by the likelihood of the threatened harm because the defense
rests on principles of necessity. See Commission Report, cmt. 2 on 2C:2-9 at
70 (stating “[t]he present section gives the principle of necessity application where the
evil apprehended comes from another person rather than from the perils of the
physical world.”). In effect, for duress to be present, “[the] defendant [must] claim[]
to be psychically incapable of not acting, and therefore excused.” Id. at 71.
See footnote 7
Stated conversely, the subjective aspect becomes more apparent
-- even if a coercive threat may be deemed to be beyond the
power of resistance for an ordinary reasonable person, the threat, nonetheless, may be
insufficient to coerce the particular defendant and, when that happens, duress is not
present for that defendant. Ibid. The jury, therefore, must assess the sincerity of
the defendant’s asserted perception of an imminent threat of harm.
The second component of the defense is objective in nature: a defendant’s level
of resistance to the particular threat must meet community standards of reasonableness. The
jury must evaluate a defendant’s response to the threat by applying the standard
of the “person of reasonable firmness.” N.J.S.A. 2C:2-9a. The norm presupposes an ordinary
person without “serious mental and emotional defects.” See McAllister, supra, 41 N.J. at
353-54; State v. Van Dyke,
361 N.J. Super. 403, 417 (App. Div.) (recognizing
duress as establishing standard “measured by the societal objective norm of the person
of reasonable firmness rather than by the [particular attributes] which characterize defendant”), certif.
denied,
178 N.J. 35 (2003). It is an objective standard against which to
measure the defendant’s response to the “threat.”
This normative aspect of duress is essential to the defense’s coexistence with society’s
duty to protect innocent third parties from harm. The defense does not excuse
easily criminal conduct that could, or does, present harm to innocent persons. “[T]he
normative component of duress assures that the coerced actor demonstrated the degree of
fortitude expected of a member of the morally responsible community. In other words,
even though the legally coerced actor failed to do the right thing, [his
or] her act is nevertheless tolerated because [he or] she ‘attained society’s legitimate
expectations of moral strength.’” Dore, supra,
56 Ohio St. L.J. at 746 (citation
omitted).
In making this assessment, the jury must consider objectively such factors as the
gravity of the threat, the proximity of the impending harm being threatened, opportunities
for escape, likely execution of the threat, and the seriousness of the crime
defendant committed. See Commission Report, cmt. 3 on 2C:2-9 at 71. A defendant’s
personal timidity or lack of firmness in the face of intimidation does not
serve as the measure for his or her conduct. Community expectations prevail in
judging a defendant’s response to a threat when that response involves engaging in
criminal action toward, or affecting, an innocent third person -- not the one
who posed the threat to the defendant. With the defense of duress, a
defendant is neither held to a standard of heroism, nor is defendant allowed
to rely on his or her idiosyncratic mental and emotional weaknesses.
Finally, before one can even claim to satisfy the components of duress set
forth in subsection a of the statute, the defendant must satisfy a threshold
requirement set forth in subsection b. The defendant must not have “recklessly placed
himself [or herself] in a situation in which it was probable that that
he [or she] would be subjected to duress.” N.J.S.A. 2C:2-9b (emphasis added). If
the defendant has acted so, the duress defense is unavailable.
IV.
A.
In this case, defendant sought to convince the jury that she had been
subjected to coercion sufficient to support a claim of duress by presenting expert
testimony about battered woman syndrome. In order to evaluate defendant’s proposed use of
battered woman syndrome evidence, we consider two questions: is the evidence accepted as
reliable for the purposes advanced, and, is the evidence relevant to the statutory
defense.
As to the first question, Evidence Rule 702 controls. It contains the standards
governing the admission of expert testimony and
“imposes three basic requirements: ‘(1) the
intended testimony must concern a subject matter that is beyond the ken of
the average juror; (2) the field testified to must be at a state
of the art such that an expert's testimony could be sufficiently reliable; and
(3) the witness must have sufficient expertise to offer the intended testimony.’” Kemp
ex rel. Wright v. State,
174 N.J. 412, 424 (2002) (quoting Landrigan v.
Celotex Corp.,
127 N.J. 404, 413 (1992)). B
attered woman syndrome expert testimony was
scrutinized by those standards in Kelly. Supra, 97 N.J. at 208. The expert’s
testimony about the syndrome was found to meet the requirements for general acceptance
and reliability specifically for the purpose of assisting the jury “to overcome common
myths or misconceptions that a woman who had been the victim of battering
would have surely left the batterer.” J.Q., supra, 130 N.J. at 574.
The relationship between a battered woman and her abuser is complicated and “embodies
psychological and societal features that are not well understood by lay observers.” Kelly,
supra, 97 N.J. at 209. There are many stereotypes and myths surrounding that
relationship that may influence the jury’s ability to evaluate the abused woman’s credibility
and reasonableness in assessing her state of mind. Id. at 204-09. As we
determined in Kelly, the subject matter is sufficiently “
beyond the ken of the
average juror,” as to make expert witness testimony appropriate on the question of
the battered woman’s subjective fear and her inability to leave her abuser. Id.
at 208. We, therefore, next must consider whether those accepted uses of expert
evidence about battered woman syndrome also are relevent in connection with the components
of duress in N.J.S.A. 2C:2-9a, or to the threshold recklessness assessment that a
defendant must vault.
B.
As noted, N.J.S.A. 2C:2-9b requires that
[t]he defense provided by this section is unavailable if the actor recklessly placed
himself in a situation in which it was probable that he would be
subjected to duress.
See also N.J.S.A. 2C:2-9a (rendering subsection a “[s]ubject to subsection b. of this
section”). Thus, the defense of duress will fail if the defendant acted recklessly.
To allow the jury to assess whether defendant, in fact, was reckless, the
trial court admitted the testimony on battered woman syndrome. The court permitted the
expert testimony to dispel any commonly held misconception that the jury might have
about whether a battered woman should be regarded as having acted recklessly (and
thereby be deprived of access to a duress defense) simply because she did
not leave the relationship with her abuser. N.J.S.A. 2C:2-9b.
That demonstration was important to defendant’s defense. As the trial court correctly perceived,
the testimony was admissible and relevant to the recklessness aspect of the duress
defense. See Kelly, supra, 97 N.J. at 205. Such expert testimony allows a
jury to consider the possibility that a defendant’s failure to leave is “part
and parcel of her life as a battered [woman].” Id. at 206. Syndrome
evidence directly addresses any lay misperception that a defendant is reckless simply because
she remained in the abusive relationship by explaining why a battered woman may
be unable to leave. We already have found expert testimony about battered woman
syndrome useful in explaining why a jury should suspend that commonly held misperception,
and have held that such testimony has “sufficient scientific basis to produce uniform
and reasonably reliable results” for that purpose in connection with a claim of
self-defense against an abuser. Id. at 211. Such testimony is no less reliable
when considered in respect of whether the duress defense is unavailable because the
defendant has “recklessly placed [her]self in a situation in which it was probable
that [s]he would be subjected to duress.” N.J.S.A. 2C:2-9b. Thus, we agree with
the trial court and the Appellate Division that the battered woman’s syndrome evidence
was admissible and relevant to assist the jury with its assessment of defendant’s
recklessness.
C.
Assuming we do not have recklessness by the defendant, we turn to the
two components of duress required by N.J.S.A. 2C:2-9a.
First, there is the requirement that the jury be convinced of the sincerity
of a defendant’s perception that she is being threatened, that is to say,
that she honestly believes that there is an imminent threat of danger. To
the extent that the jury must be persuaded that defendant perceived herself to
be threatened, expert testimony about battered woman syndrome is also relevant on that
question. It was found helpful for a similar state-of-mind purpose in respect of
self-defense and has been used repeatedly in self-defense contexts when a jury must
assess the credibility of a defendant claiming fear of perceived imminent danger from
her abuser. See Townsend, supra, 374 N.J. Super. at 53. As one commentator
has explained,
[a] woman who views her circumstances through the eyes of one who has
already suffered abuse at the hands of the coercer may see imminent danger
even though some time may pass between the threat and her subsequent criminal
act, and even though others may see no serious threat at all. There
is no reason why the defendant's perception, altered through a cycle of battering,
of the imminence of the threat should be any less informative in a
case of coerced conduct than where the defendant acted in self-defense. And, in
the same way that evidence of past abuse may affect the jury's perception
of the defendant's credibility in cases of self-defense, so, too, does it apply
in duress cases.
[Boyland, supra,
28 New Eng. L. Rev./u>. at 625-26 (citations omitted); see also
Monacella, supra,
70 Temp. L. Rev. at 725-26.]
Expert testimony can be useful to a jury assessing the sincerity of
a defendant’s perception of a threat in connection with a duress defense. Our
duress statute, by adopting the MPC standard that dispensed with an absolute threshold
requirement of immediacy, allows the subjective imminence of the threat to the defendant
to be but one of several factors to be considered, and thus renders
syndrome evidence about the unique perceptions of a battered woman relevant to this
subjective aspect of the duress calculus. See Dore, supra,
56 Ohio St. L.J.
at 720, 738 (noting overlap between self-defense and duress in respect of use
of syndrome evidence to understand defendant’s subjective perception of imminent threat).
Battered woman syndrome evidence goes to the heart of that state-of-mind assessment. The
jury must decide whether a defendant actually believed that she was under a
threat of coercion.
The battered woman defense is clearly relevant to the subjective component of a
battered woman's coercion defense. It undeniably aids the woman in bolstering (and in
many cases, in salvaging) her credibility before the fact-finder. It supports the honesty
of her fear, as well as her belief that committing a crime was
the only way to avert harm, even in the absence of an objectively
imminent and explicit threat.
[Dore, supra,
56 Ohio St. L.J. at 761-62.]
In this matter, the trial court’s instruction did not inform the jury that
the expert testimony could be considered for such purpose, although at the close
of the court’s instruction on the battered woman syndrome evidence there was a
reference to the testimony being used “to understand a battered woman’s state of
mind.” That fleeting reference, however, came on the heels of the court’s direction
to the jury that the evidence could only be used for the recklessness
assessment and did not give clear direction to the jury.
See footnote 8
In sum, in respect of the first component of duress under N.J.S.A. 2C:2-9a,
we conclude that battered woman syndrome expert evidence is relevant and admissible on
the question of the sincerity of defendant’s claim that she perceived a threat
of harm from S.H. when she engaged in sexual intercourse with her seven-year-old
stepson. It was error not to have permitted the jury to hear evidence
about battered woman syndrome in connection with that subjective state-of-mind component of defendant’s
claim of duress. The jury instruction similarly was flawed because the jury was
not informed that it could consider battered woman syndrome expert testimony when assessing
the sincerity of defendant’s perception of a coercive threat.
D.
Last, we turn to the second component of duress established by N.J.S.A. 2C:2-9a.
The ultimate determination for the jury is the reasonableness of a defendant’s conduct.
A jury must be convinced that the defendant experienced a coercion that a
person of reasonable firmness in that situation would have been unable to withstand.
Because N.J.S.A. 2C:2-9a embodies an objective standard for the evaluation of a defendant’s
conduct in response to a threat by another, we can discern no place
for battered woman syndrome evidence in that assessment. In applying the statute’s objective
measure, it is a person of reasonable firmness that the jury must consider.
The jury must evaluate objectively the defendant’s criminal conduct toward a third person,
and whether a person of ordinary strength and willpower would refuse to do
the criminal act even in the face of the harm threatened. The idiosyncratic
fact that the defendant may be susceptible to the demands of her abuser
because she suffers from battered woman syndrome becomes irrelevant in that assessment. The
issue is whether a person of reasonable firmness in her situation would have
been able to resist the threat from her abuser. Expert testimony on the
syndrome is inconsistent with the objective standard.
Other j
urisdictions also have held such
evidence not relevant to an objective “person of reasonable firmness” standard, reasoning that
the evidence simply explains why a particular defendant would succumb to coercion when
a person without a background of being battered would not. See, e.g., United
States v. Willis,
38 F.3d 170, 175 (5th Cir. 1994), cert. denied,
515 U.S. 1145,
115 S. Ct. 2585,
132 L. Ed.2d 834 (1995); United
States v. Sixty Acres in Etowah County,
930 F.2d 857, 860-61 (11th Cir.
1991); United States v. Smith,
113 F. Supp.2d 879, 909 (E.D. Va. 1999).
See footnote 9
Commentators similarly have noted the inapplicability of the syndrome evidence to the
objective standard.
The battered woman defense, as currently formulated, runs contrary to this normative aspect
of duress. . . . . [T]he battered woman defense typically focuses on
how the individual perceptions and psychological capacities of battered women, in fact, differ
from those of the person of "reasonable firmness." The more that defense resembles
a plea of diminished capacity or insanity, the less the battered offender resembles
the morally responsible agent for whom the defense of duress was constructed. In
short, the behavioral and psychological characteristics that currently comprise the battered woman defense
and that render battered offenders more susceptible to threats and less capable of
resistance cannot be imported into the objective standard without gutting duress of its
normative function.
[Dore, supra,
56 Ohio St. L.J. at 743-44 (citations omitted); Monacella, supra,
70
Temple L. Rev. at 737 (noting that “[a]lowing evidence of battered woman syndrome
in duress defenses does not mean that expert testimony may be offered to
show that it is understandable that an abused woman believed she was in
imminent danger, whereas a reasonable person would no