Our cultural understanding of “criminal” heavily influences how the elements of a criminal defense are defined and applied. Kansas Supreme Court case State v. Stewart was no exception to this rule. The defendant in this case, a victim of a long-term domestic abuse by her husband, Mike, was charged with first-degree murder of her husband. After suffering years of emotional and physical abuse toward herself and her two daughters, on the morning of the murder, Stewart found her only escape from the nightmare, her only shield from continued threats of abuse and even death: a loaded .357 magnum. She hoped that it would liberate her from a past filled with hospitalizations from Mike’s abuse, multiple threats of death at gunpoint, and countless escalated sexual demands. Stewart picked up the gun and killed her sleeping husband, the source of her suicidal thoughts and daily death threats. The jury rightly found her actions justified under self-defense.

However, on appeal, the Kansas Supreme Court held that “when a battered woman kills her sleeping spouse when there is no imminent danger, the killing is not reasonably necessary and a self-defense [jury] instruction may not be given.” (emphasis added). The court further explained that it was an error for the trial court to instruct the jury to determine whether Stewart’s belief of imminent danger, and necessity for self-defense, was reasonable“from her individual subjective viewpoint rather than the viewpoint of a reasonable person in her circumstances.” (emphasis added). Under this standard, the court was not convinced that Mike’s daily threat of death was an imminent danger. Defining “imminent” as “close to the time,” the court determined that the threat was not reasonably imminent because a reasonable person would not sense a temporal closeness of threatened harm when she pulled the trigger. Moreover, from the objective viewpoint of a reasonable person in her circumstances, the level of force was not reasonably necessary to repel the threat.

Perhaps the court genuinely attempted to impose an objective standard in reasonableness. Perhaps, using the objective standard, Stewart was overreacting. In actuality, however, the justices, while requiring objective determination of reasonableness, substituted the objective “reasonable person” in Stewart’s circumstances with their own subjective, empathetic “reasonable person” in her circumstances. To the court, the threat was not reasonably imminent nor was self-defense reasonably necessary for Stewart to protect herself against a male of a physical stature and a standing in society like Mike’s. The court formulated a woman without a long history of physical, sexual, and emotional abuse, a woman who did not suffer from schizophrenia and suicidal compulsion, a woman who was not forced to live with the source of her trauma. For that woman, the threat was not reasonably imminent, and self-defense was not reasonably necessary. As demonstrated by the court itself, an objective “reasonable person” completely unaltered by her circumstances is a fictional character; she is always constructed by subjective social norms and familiarities.

Stewart, crippled with excruciating fear and repeated physical, emotional, and sexual abuse, was the reasonable person in her circumstances. Any reasonable person having lived through her circumstances would have perceived a real, apparent, and reasonably imminent danger, one that necessitated self-defense. The Kansas Supreme Court’s analysis of “reasonableness” can only be understood as its failure to understand the “criminal.” In the justices’ presumably normal, unabusive marriages and average relational problems, they regarded the defendant, who killed out of recurring fear of death, not as a reasonable person, but as a monstrous anomaly.

Recently, there has been a move toward allowing defendants to present evidence of past battering and its effect in self-defense claims in domestic violence cases. There is an increasing social awareness of the effect of long-term abuse on victims of domestic violence, a “non-demonizing” view of a woman who stays in a long-term abusive relationship, and empathy towards victims who kill during nonconfrontational moments. There also has been a call for a more objective view of the effect of battering by eliminating the focus on gender and individual psychology and instead looking to the pattern of physical or emotional abuse and a cultural context of domination. This cultural awareness and understanding is further bolstered by advanced research on the effects of repeated battering. If Stewart’s case had taken place today, the court may have seen her as the reasonable person committing reasonable acts, given the increased social awareness, and a more objective understanding, of domestic abuse.

Maybe today, the Kansas Supreme Court would accept the Black’s Law Dictionary definition of “imminent,” defining it not as “close in time” but as “dangerously impending.”  If they adopt this definition, the court would hold that the jury could find that danger was reasonably imminent. Mike was provoked erratically and threatened to shoot Stewart multiple times. She lived in constant fear, knowing that Mike could kill her at any time; any reasonable person would have acted the way she did to defend themselves.

Today, punishments against someone like Stewart are not justified. Through its holding, the court effectively deterred rightful self-defense against perpetrators of domestic violence. However, it did not deter the actual perpetrators. Instead, it punished people like Stewart, who normally do not pose a threat to society. Such a decision does not create a better, safer society. If creating such a society is a purported goal of the justice system, maybe what is needed is better support and awareness around this issue and stricter punishment for abusers. If Stewart were standing in front of a court today, she should not be viewed as someone who is morally culpable; rather, she should be viewed as a victim of a morally culpable abuser. Although this court’s holding did not change Stewart’s verdict—her not guilty verdict remained in place and she was not tried under the new jury instruction—the court’s decision unfortunately created a precedent for how to instruct juries in future Kansas cases. And Kansas is not alone. Even today, many states still do not allow self-defense claims for victims of domestic violence who kill during nonconfrontational moments because there is neither imminence nor reasonable necessity for self-defense. Our hope is that the continued awareness of the effect of long-term domestic violence, the increasing volume of work by scholars to bring objectivity to the “murder,” and the re-definition of the “criminal” and the “reasonable person” will change this precedent.