Battered Women's Defense Plea

IN a voice that faltered during parts of her opening staItement to the Massachusetts Advisory Board of Pardons last month, Patricia Hennessey chronicled the abuse she says led her to kill her ex-husband in self-defense in 1988.

The battering started after their marriage, she said, and included rape, pulling her hair out, punching her stomach when she was pregnant, having lit cigarettes put out on her neck, and having her husband try to run her over in his van while she attempted to flee with their young son.

"I felt trapped, afraid to leave and afraid not to leave," said the 32-year-old woman who is serving an 18- to 20-year sentence at the Massachusetts Correctional Institution for Women in Framingham.

Although Hennessey and her husband divorced, she said the abuse and threats continued over a six-year period. Finally, when her ex-husband appeared unexpectedly to pick up their son for a visit, he "told me to `kiss Timmy goodbye because you're never going to see him again.' " Hennessey said she believed Brian's statement and previous threats that he was going to kill her. She went into the house, got a gun, and shot Brian Hennessey five times. Mr. Hennessey's parents, who testified at the commutation he aring, say the abuse never occurred.

Hennessey is one of the Framingham Eight - eight Bay State women who say they killed their batterers in self-defense. In February 1992, lawyers for the Boston-based nonprofit organization Battered Women Fighting Back! submitted petitions to Massachusetts Gov. William Weld to commute the women's sentences. The Board of Pardons has heard seven of the petitions.

Efforts to win pardons for women in Massachusetts are part of a clemency movement that started in Ohio and Maryland, says Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women. In 1990, Ohio Gov. Richard Celeste commuted the sentences of 27 women, and in February 1991, Gov. Donald Schaefer of Maryland pardoned eight women. "The concept of mass clemency became something that a lot of people thought maybe could happen in their own state," Ms. Osthoff says.

Osthoff estimates that 1,000 women in the US are in prison for killing their partners. But she says that between 60 and 90 percent of incarcerated women are battered. Many are serving time because they were coerced into criminal activity by their abusers, she says.

Battered-women's advocates say most women who have killed their abusers are treated unfairly by the criminal-justice system. Not only do many courts fail to protect women in the first place, but most states also deny testimony about battered-women's syndrome, says Stacey Kabat, director of Battered Women Fight Back!

Battered-women's syndrome is a term used to explain how the physical, mental, and emotional trauma from abuse affects the victim's behavior. Seven states have passed laws permitting expert testimony on battered-women's syndrome, and many others are considering doing so, Osthoff says. In Massachusetts, as in most states, judges decide whether that evidence is admissible.

Many judges are reluctant to allow such evidence in cases when the woman murders during a lull in the violence, says Joan Zorza, senior attorney for the National Battered Women's Law Project. "They don't want any testimony [about domestic violence] to come in if it wasn't in the absolute immediacy of the last five minutes [prior to the killing of the batterer]," she says.

But testimony about battered women's syndrome is not a defense, Osthoff says. "What we're asking for is what should be true for every defendant - that they have a right to bring in all of the relevant evidence."

Part of the problem is the definition of self-defense. "Most of the original concepts of self-defense never looked at combat between men and women. It was looked at as something that would happen between strangers - usually as the bar-room fight. [Judges] weren't looking at someone being brutalized month after month, year after year," Ms. Zorza says.

Battered-women's syndrome is "a way to argue that you can claim self-defense even when the man is not at that moment about to attack the woman," says Joshua Dressler, a law professor at Wayne State University in Detroit. "In that sense it's really trying to expand the idea of self-defense by trying to show that the women's mental state, because of the battered-women's syndrome, makes her feel that she has no other choice than to kill the man under these nonconfrontational circumstances."

Judges, attorneys, and the public question why women don't just walk out of the situation. But law-enforcement officials and battered-women's advocates agree that the relationship becomes most dangerous for a woman when she leaves or gets a restraining order against an abusive partner.

Mr. Dressler disagrees with some feminist organizations that say the law ought to treat the murder of a batterer in a nonconfrontational situation as a justified killing. "The woman's claim ought to be seen more in the nature of an excuse, something that suggests that what she did is not something we ought to consider permissible or desirable conduct, but that she's not morally to blame for the killing or that she's at least much less to blame for the killing than would be true in the ordinary situation, " he says.

He adds: "It ought to be the legislatures and lawmakers who decide whether we are justifying killings in these circumstances or not."