Should an Abused Wife Be Charged in Her Husband’s Crime?

https://www.nytimes.com/2018/03/12/opinion/noor-salman-vegas-shooting-trial.html

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Testimony is expected to begin this week in the federal prosecution of Noor Salman, whose husband, Omar Mateen, killed 49 people at the Pulse nightclub in Orlando, Fla., in 2016. Ms. Salman is charged with aiding and abetting her husband, who was killed in a shootout with the police, in “providing material support” to the Islamic State, and obstruction of justice. With so few facts available, it would be irresponsible to speculate about Ms. Salman’s possible role in this horrific event.

But here’s what we do know: Before Mr. Mateen decided to commit mass murder, he repeatedly abused Ms. Salman physically and emotionally. Ms. Salman has said her husband punched her, choked her, threatened to kill her, coerced her into sex and left her isolated in their home. Her lawyers say she lived in constant fear of him.

It’s unlikely that Ms. Salman will be the last domestic violence victim subject to prosecution in relation to large-scale violence committed by her abusive partner. That’s because of a confluence of factors: first, the strong link between domestic violence and mass shootings; and second, the frequency with which perpetrators exercise coercive control over their intimate partners, forcing them to act in ways they otherwise might not have done.

Because the link is so common, and the control so pervasive, we need to think seriously about what kind of legal responsibility we are prepared to assign victims under these circumstances.

The connection between partner abuse and mass shootings has become almost commonplace. Among the many examples: Devin Patrick Kelley, who murdered 26 congregants at First Baptist Church in Sutherland Springs, Tex., in November, had been court-martialed by the Air Force for domestic violence; James Hodgkinson, who fired on members of Congress as they played baseball last June, had a court record of abuse against his foster daughter; Mohamed Lahouaiej Bouhlel, who killed 84 people with a truck in Nice, France, in July 2016, was known to the authorities because he had assaulted his wife.

How can we make sense of the connection between domestic abuse and large-scale violence? The men (and they typically are men) who perpetrate private abuse often use violence to create a climate of fear for the women who live with them. The gunman in a mass shooting does the same thing, sowing terror among his targets and the public.

This is not to say that all those who commit domestic violence are at risk of becoming mass murderers. Only a small subset of people who abuse family members also commit large-scale murder. The link, however, is a crucial one. In fact, experts refer to particularly dangerous domestic relationships as “intimate terrorism.”

When domestic violence follows the pattern of intimate terrorism, the perpetrator typically tries to control every aspect of the victim’s life: her finances, clothes, contact with friends and family, even what position she sleeps in. Once an abuser has appropriated the power to restrict his partner’s daily life, he no longer needs to resort to regular physical harm; it is only when she tries to resist his “rules” that he’s likely to follow through with violence. Physical violence is his punctuation mark, the tactic he uses when others have failed to yield the control he requires.

Prosecutors say Ms. Salman made financial arrangements with Mr. Mateen in advance of the attack and helped him devise a cover story. The F.B.I. has said that Ms. Salman confessed to joining Mr. Mateen on a trip to scout out the nightclub. Ms. Salman denies prior knowledge of the attack. Again, the trial has not yet begun, and nothing has been proven.

But a woman living in a relationship defined by coercive control that is enforced through the threat of violence cannot realistically be held to the same standard of criminal liability as a person whose life is characterized by free choice. Our criminal justice system has long recognized this relationship between coercion and legal guilt, in the form of the duress defense. Although rarely used, this defense excuses a person from criminal responsibility for actions if she had a well-grounded fear of incurring serious bodily injury for refusing to act and if she had no plausible hope of escaping the threat.

This defense seems particularly relevant in the context of domestic violence — perhaps especially so when the perpetrator is so unhinged that he has the capacity to carry out a mass murder. Her refusal to comply with her abusive partner’s demands could lead to her own death. According to an analysis of F.B.I. statistics by the gun-control group Everytown for Gun Safety, in 57 percent of shootings of more than four people from 2008 to 2012, the gunman killed a current or former spouse, intimate partner or other family member.

When horrific acts of violence occur, we have an impulse to bring someone — anyone — to justice. And when the perpetrator of a mass shooting dies on the scene, this need is left unresolved. But however intolerable this situation may appear to be, the path to progress should not include blaming the women who also merit a place on a gunman’s long list of victims.