An Exercise of Victim Rights or Vigilantism?

Here is an interesting editorial that appeared in the USA Today on May 9th, 2006:

Injustice after all: How should victimized offenders be treated?Posted 5/8/2006 9:48 PM ET

By Sheryl McCarthy

A college student who was brutalized for years bludgeons his father. A teen tormented by his parents guns them down. A wife who was raped and beaten by her husband stabs him to death. How should society — and the legal system treat cases such as these? Compassion would be a good start.

The crime was horrific. Mulumba Kazigo, a 26-year-old college student, went to his father's home in suburban New York in August, beat him with a bat while he slept and dumped his body in the woods.

Friends and colleagues of Joseph Kazigo, a popular and respected surgeon, couldn't fathom why his son would do such a thing. Then his family members came forward with an ugly secret. For decades, Joseph Kazigo had brutalized his children — beating them bloody, imposing severe punishments for the most trivial infractions and forcing the children to rise at dawn to run 6 miles around the family home, among other cruelties.

Mulumba Kazigo told prosecutors that days before the killing, he learned that his father was beating his mother and that she feared for her life. Though prosecutors admit Joseph Kazigo was a brute, a plea deal would send his son to prison for 20 years for manslaughter (about 17 years with good time). That's almost as shocking as the crime.

Prosecutors argue the penalty would be appropriate because Kazigo planned the attack, covered it up and was old enough to choose a less violent solution. But Holly Maguigan, a New York University law professor and former criminal defense lawyer, says she was horrified by the possible long prison term. "The prosecutor's job is not to get convictions, but to do justice," she says. "How is it possible that this murder is like a drive-by shooting or like police officers acting at the behest of organized crime?"

Kazigo's trial is one of several recent, well-publicized cases in which defendants killed family members after a history of abuse. Instead of recognizing they were so traumatized and isolated by the abuse that they felt they had no other way out, prosecutors treated them like criminals. Decades after psychologists and defense attorneys established the existence of battered wife/child/person syndrome, many prosecutors seem reluctant to show leniency in cases that cry out for it.

Each year, 200-300 parents in this country are killed by their children, often by teenagers who live in abusive, dysfunctional homes, according to Paul Mones, a trial lawyer and author of the book When A Child Kills: Abused Children Who Kill Their Parents. About 1.3 million women and 835,000 men are physically assaulted by an intimate partner annually in the USA, according to findings of the 2000 National Violence Against Women Survey, by the National Institute of Justice and the Centers for Disease Control and Prevention. A Justice Department study of people charged with killing their spouses in the country's 75 largest counties in 1988 found that 44% of the women had been physically assaulted or threatened with a weapon around the time of the killing.

But battered women are not getting away with murder. A study of more than 200 appellate opinions on homicide cases involving battered women found that 75%-80% of them were convicted — the same rate as female defendants in other homicide and serious felony trials who were not battered.

Getting away with nothing

In Alamogordo, N.M., last month at a sentencing hearing, residents rallied outside the courthouse in support of Cody Posey, who was 14 when he shot his father, stepmother and stepsister two years ago. Prosecutors portrayed him as a sociopath, but about 40 witnesses at the trial testified to having witnessed countless acts of verbal and physical abuse inflicted on him by his father and stepmother.

Here's the thing: If 40 adults in the community couldn't figure out a way to get this kid out of an abusive home, why does the legal system expect him to find a mature, non-violent means of escape? As Gary Mitchell, Posey's defense attorney, put it: "How much do we ask of a child when not one of us would have tolerated it?"

In New York, Sung-Ann Choi-Lee, 30, is facing murder charges in the fatal stabbing of her abusive husband in 2004. Battered women's advocates have called on the district attorney to drop the charges. They say that Matthew Lee repeatedly beat, raped and harangued his wife and that on the night of the crime, he raped her when she was nine months pregnant. She gave birth only hours later.

A critical problem in such cases is that the law of self-defense isn't flexible enough to address the reality of the situations abused people find themselves in. One is allowed to use deadly force only to defend oneself against an imminent threat of death or serious bodily harm. In each of these cases, there was a lull between the abuse and the crime. But psychologists and advocates for battered people say because abuse victims live in constant fear that the abuse will resume at any time, the threat always feels imminent. A psychologist testifying on behalf of Posey said depression, abuse and the sense that things would never improve drove him to the point of despair on the morning he shot and killed his family.

"Sometimes it's very difficult to bring the victimization into the court as evidence, or the district attorney doesn't allow it," says Sister Mary Nerney, director of STEPS to End Family Violence, which provides services to victims. "There's a lack of understanding about how domestic violence affects people, particularly after they've been trying to get help. Often, help isn't available or isn't appropriate."

Who else knew?

In Posey's case, many adults knew he was being abused, but few attempted to stop it. Choi-Lee sought help from several ministers, but supporters say the Korean woman was ashamed of the abuse and felt an obligation to try to make the marriage work. It's unclear who knew what was going on in the Kazigo household, though his attorney says police and school officials were informed. But the cultural mores of this Ugandan-American family, which gave the father total dominance, might have made it difficult to seek help.

I don't condone murder as a solution to domestic abuse. But if we as a society don't intervene to protect abuse victims, we at least owe them compassion when they are pushed beyond enduring it.

Perhaps because of dubious cases such as that of brothers Lyle and Erik Menendez, who killed their parents in 1989 in California, Americans have grown cynical about the "abuse excuse." Advocates for battered women say though the courts were once open to allowing evidence about the history of abuse into murder trials, they've grown more reluctant. Prosecutors and juries tend to believe the woman is lying, or question why she didn't just leave, says Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women. "We're a society that continues to be in denial about the level of abuse that goes on behind closed doors," Osthoff says. "We have a lot of education to do to help people understand the reality of battered people's lives."

How should we respond to such cases? The police, family protective agencies, schools and citizens need to intervene more aggressively when they know or suspect that abuse is going on. We need to provide more options for abuse victims — from safe houses to information about how to leave and what legal protections are available. Laws can be changed to allow the history of abuse to be considered as an element of the imminent danger requirement of self-defense. And we can put pressure on prosecutors to understand the dynamics of domestic abuse, and to realize they shouldn't treat abused people who strike back the same way they'd treat a drive-by shooter.

After Posey was convicted of murder and manslaughter, the trial judge did the right thing by choosing to sentence him as a juvenile instead of as an adult. He was committed to the care of juvenile authorities until he's 21, instead of being sent to prison for life.

Choi-Lee is charged with second-degree murder, but the prosecutor could choose to offer a plea for a lesser crime, or dismiss the case altogether.

As for Kazigo, who's due to be sentenced Wednesday, the prosecutor, or judge, can choose to reduce his sentence. Considering what he has been through, he doesn't deserve to spend the next two decades in prison.

Sheryl McCarthy is a freelance writer and columnist for Newsday newspaper in New York.

Posted by JB