3 minute read

Abuse Excuse

Description of efforts by some criminal defendants to negate criminal responsibility by showing that they could not tell right from wrong due to abuse by their spouses or parents. Although this defense is not specifically recognized in substantive CRIMINAL LAW, it has been used successfully in some cases to prove, for example, the INSANITY DEFENSE.

Using prior sexual or other physical abuse as evidence in a criminal defense is largely a result of research regarding mental disorders caused by such abuse. Psychologists and other researchers have identified disorders, including post-traumatic stress disorder and battered woman syndrome, as causes for severe emotional instability that can lead to violent acts by the victim against his or her abuser. Some writers have advocated more widespread use of such evidence to mitigate the punishment of victims who commit violent acts.

Other scholars and writers disagree, noting that substantive criminal law does not recognize the abuse excuse as a legitimate defense except in some limited circumstances, such as those involving the insanity defense. Harvard law professor ALAN DERSHOWITZ coined the term in his 1994 book, The Abuse Excuse, where he deems the studies regarding psychological disorders caused by abuse as "psychobabble." Dershowitz and other critics disagree not only with the use of abuse as mitigating evidence of criminal intent, but also with the results of the studies themselves. According to these critics, especially Dershowitz, the abuse excuse fails to distinguish between the reasons why a person committed a crime and the responsibility for committing the crime.

In a few high profile cases during the late 1980s and 1990s, defendants sought to avoid criminal responsibility for their crimes by introducing evidence of prior abuse. In 1989, Lyle and Erik Menendez, ages 21 and 18 respectively, brutally killed their parents in the family's California home. At their first trial for murder in 1993, the brothers' defense team introduced evidence that the men's father, Jose Menendez, had sexually abused his sons for a number of years. Because of this abuse, Lyle and Eric, according to the defense, killed their parents out of fear. In raising the evidence of abuse, the defense sought to reduce the conviction from murder to voluntary MANSLAUGHTER. The defense won a victory of sorts when the first trial ended in a hung jury because the jurors could not agree whether the brothers were killers or whether they acted out due to the years of alleged abuse they had suffered. In a second trial in 1995, however, the jury convicted the brothers of first-degree murder notwithstanding the evidence of abuse, and the judge sentenced them to life in prison without the possibility of PAROLE.

In 1993, Lorena Bobbitt was indicted for malicious wounding after cutting off her sleeping husband's penis during the middle of the night. At her trial, her defense team introduced evidence of a history of sexual and physical abuse committed by the husband, John, against Lorena. Unlike the Menendez case, where the defense conceded that the brothers were criminally responsible for their actions, Lorena's defense team used the evidence to prove the insanity defense. In 1994, a jury found her not guilty of the crime by reason of insanity.

Scholars have noted that the employment of the abuse excuse as a defense is more viable if it is used to prove insanity, which happened in the Lorena Bobbitt case. Commentators have also noted that evidence of prior abuse, whether substantiated or not, has been used in settings other than criminal defense. For instance, a wife may accuse a husband of SEXUAL ABUSE during DIVORCE proceedings or an adult woman may sue her father for sexual abuse that allegedly occurred when the woman was a child.


Arenella, Peter. 1996. "Demystifying the Abuse Excuse: Is There One?" Harvard Journal of Law and Public Policy 19.

Becker, Mary E. 1998. "The Abuse Excuse and Patriarchal Narratives." Northwestern University Law Review 92.

Wilson, James Q. 1997. Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? New York: Basic Books.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: "But for" Rule to Additional Instructions