Danielle RestainoMelville and the LawFinal PaperProfessor KonefskyMay 18, 2009Graduating Senior*

Oppression and the Failure of Justice: The Prosecutions of Babo and the Battered Woman

Introduction

Herman Melville’s Benito Cereno1 ends with deposition testimony given by the

Spanish Captain Cereno, recounting the sinister charade he was forced to play at the

hands of Babo, the leader of the slaves on Don Cereno’s ship, the San Dominick.

Whatever Melville’s reasoning to include this piece of legal text in his story, it is striking

to note that Don Cereno’s version of the events that took place on his ship is the only

version heard by the fictional court who charged Babo with murder. The court never

hears why Babo plotted to take over the San Dominick, the horrors he must have endured

as a slave, or why he felt violence and force were the only ways to assert his freedom.

Within the context of nineteenth century slavery, the legal system never even entertains

the idea that it should be asking those questions, or allowing Babo as a slave to raise any

defense. Instead he is to be punished for stepping out of place and acting contrary to

what society expects of him as a slave.

Although society has come a long way since Melville wrote Benito Cereno,

recognizing that oppression of one race by another is morally and legally wrong, the legal

system still allows for some defendants to remain voiceless in their prosecutions. Much

the way Babo could not explain his necessity for using violence to throw off his

1 Herman Melville, Benito Cereno, Billy Budd and Other Stories 161 (Frederick Busch ed., Penguin Books 1986) (1856).

1

oppressors; victims of domestic violence being prosecuted for homicide are often not able

to explain their necessity in the context of an abusive relationship for using lethal

violence against their oppressors. The context in which their actions are interpreted and

analyzed do not take into account the systematic abuse they endured and as a result they

are categorized as criminals rather than victims.

Over the course of time Babo has been interpreted by readers in different ways.

Debate has ensued as to whether he is meant to be a good character or an evil one. This

dichotomy stems from the way the reader interprets Babo’s actions and whether one sees

his use of violent revolt as admirable in an effort to liberate himself and his fellow slaves,

or whether one sees it as murderous and unfathomable. A similar debate takes place

today in the characterization of a victim of domestic abuse who kills her abuser. Lawyers

have to argue two opposing sides of a very similar dichotomy as is discussed relating to

Babo. Prosecutors will take the position that this female defendant is a criminal guilty of

an unfathomable crime. Defense attorneys will, hopefully, take the position that this

woman, limited by the abuse she endured found no other way to assert her freedom and

will try and explain her side of the story. The characterization of both Babo and the

battered woman play an integral role in deciding whether or not the legal system in which

they are both prosecuted has failed them in preventing them to raise certain arguments

regarding their use of violence.

One of those arguments has to do with an individual’s natural right to revolt

against oppression, even if that means using force or violence. This argument was used

as an effective defense in the case of the Amistad, an actual slave revolt aboard a ship in

the nineteenth century.2 In defense of slaves aboard that ship, who killed the captain and

2 United States v. The Amistad, 40 U.S. 518 (1841).

2

took control, former President John Quincy Adams very skillfully argued before the

Supreme Court the right with which these men were endowed with by nature to be free of

oppression and the right to achieve freedom by any means.3 The parallels drawn in his

argument to the spirit behind the American Revolution made this a successful argument

for the defendants in this case.4 While this basic principle was accepted in the case of

The Amistad, the same kind of argument was not made for Babo. As for a battered

woman this idea of a right to revolution or a right to be free from oppression can only be

surmised if defense counsel submits evidence of Battered Woman’s Syndrome and that is

not always guaranteed, and it does not always fit into a justification defense.

This argument that seemed to work so well for the defendants in The Amistad is

conspicuously missing from Babo’s prosecution. As was mentioned above, Babo was not

represented and was not given an opportunity to raise any defense in his favor. Likewise

a domestic violence victim is not always able to raise the context in which here crime was

committed and as such cannot voice her right to be free from oppression, violence and

abuse. This paper will go on to look at these issues in more depth and discuss they ways

in which the legal system fails the battered woman on trial for a homicide, just as it failed

Babo in Benito Cereno.

I.

In trying to reconcile why Babo is left defenseless in his prosecution for murder it

may help to determine how Babo is perceived by readers of Melville’s story. There is a

definite tension between two contrasting views of Babo: one as a revolutionary leader

who used societal expectations to his advantage to assert his freedom and the other as an

3 John Quincy Adams, Argument before the Supreme Court in The Amistad (1841).4 Id.

3

evil monster to be feared because of his dark mind and actions. To the latter

characterization some critics believe Melville made no attempt to escape from the

traditional stereotypes of black and white suggesting black as evil and white as good.

That in fact the traditional stereotype “is merely transposed so that black (delusively

virtuous or harmless to early Delano) may equal blacker (incarnate iniquity to later

Delano), while white (delusively evil and suspiciously malign to early Delano) may equal

whiter (tragically victimized virtue to later Delano).”5 In this regard Babo is seen as a

villain, one who epitomizes evil for the white characters of the story. At the end of the

story after the legal documents have been offered to the reader, Delano and Cereno share

a conversation about the events that took place, with Cereno still haunted by what Delano

assumes to be his memories:

‘So far may even the best man err, in judging the conduct of one with the recesses of whose condition he is not acquainted. But you were forced to it; and you were in time undeceived. Would that, in both respects, it was so ever, with all men.’‘You generalize, Don Benito; and mournfully enough. But the past is passed; why moralize upon it? Forget it. See, yon bright sun has forgotten it all, and the blue sea, and the blue sky; these have turned over new leaves.’‘Because they have no memory,’ he dejectedly replied; ‘because they are not human.’. . . . ‘You are saved,’ cried Captain Delano, more and more astonished and pained; ‘you are saved: what has cast such a shadow upon you?’‘The negro.’There was silence, while the moody man sat, slowly and unconsciously gathering his mantle around him, as if it were a pall.There was no more conversation that day.6

5 Sidney Kaplan, Herman Melville and the American National Sin: The Meaning of Benito Cereno, 42 The Journal of Negro History 11, 22 (1957).6 Melville, Benito Cereno at 257-8.

4

At the end of this passage, Delano’s lack of further conversation implies “he knows

finally malign evil exists – and where.”7 Melville removes the veil from Delano’s eyes

and he is now fully aware that evil exists in the form of Babo, and his ruthless actions. In

the historical context in which this story was written it can be inferred by the reader that

Babo is evil in large part because of his race. As a black slave he is barbaric and

primitive and so evil consequently comes naturally to him. Babo’s actions are not looked

at in any other context because at the time slaves did not have rights to assert, let alone

use violence to break free from slavery.

As for the first characterization of Babo mentioned, that of him as a revolutionary

leader doing good for himself and his race some scholars attribute to Babo an

understanding “of the deeper structures of racism and cunningly refigures them for his

own purposes.”8 This understanding allowed Babo to put on a charade for Delano. It

allowed him to organize the other slaves on board the ship and helped him to remain

resolute to the end. In his prosecution and eventual execution his understanding of the

natural rights he was entitled to kept him an example of defiance.9

In this understanding of the structure of racism and slavery, the character of Babo

redefines the idea of “personal liberty and political independence in terms of race

relations.”10 In an effort to take back the control that he ought to have over his own

person and his own destiny Babo asserts his right to be free using the only means

available to him: violence and force. He has no legal recourse, he has no one he can turn

to for help. His only option is to fight off his oppression with what limited means he has

7 Kaplan at 26.8 Alan Shima, Orders of Power: The Authority of Babo in Herman Melville’s “Benito Cereno”, 3 Nordic Journal of English Studies 301, 302 (2004).9 Shima at 301.10 Shima at 302.

5

as a slave. To that end the only resources he has to fight for his freedom is his own wit

and physical attributes. His violence is not a sign of evil or a threat to white society, it is

the only way he can fight off the oppression that he has endured for as long as readers

have known him.

Babo manipulates his surroundings because that is what Delano expects. Delano

finds nothing odd about the “devoted loyalty”11 Babo shows Cereno. Babo merely puts

on the masquerade society expects of him, to be the dutiful, loyal servant of a white man.

In his doing so though, he is balancing the revolt he has so cunningly planned in an effort

to take back his identity. In comparison, a victim of domestic violence puts on a

masquerade of normalcy because that is what society expects from woman in a

relationship. It is also what her abuser expects her to do. Much like Babo, the battered

woman is limited in her options to break free from her oppressor and assert her freedom.

A victim of domestic violence sees no way out and some find that killing their abuser is

the only way to gain their freedom. As a result she is either characterized as a criminal

for committing a homicide, or she can be seen as hero, taking back her freedom and

achieving autonomy for herself and perhaps her children.

In order to understand why the battered woman should not be viewed as some

monstrous criminal it is necessary to have and understanding of why she feels limited in

her ability to free herself from the oppression of abuse. Victims of domestic violence

“become psychologically paralyzed as a result of learned helplessness.”12 “Similarly, the

11 Shima at 306.12 Edward Gondolf & Ellen Fisher, The Survivor Theory, Battered Women as Survivors: An Alternative to Treating Learned Helplessness, Lexington Books (1988), reprinted in Domestic Violence Law 2d ed., (Nancy K. D. Lemon ed., Thomson West, 2005).

6

battered woman is immobilized amidst the uncertainty of when abuse will occur. She

begins to feel she has no control over her experience.”13

Added to this feeling of paralysis is the lack of confidence in law enforcement and

the legal system to protect battered women from their abusers. Unlike Babo who had no

legal rights as a slave to throw off his oppression, the battered woman has legal rights

that should be enforced and that should guarantee her protection. Mandatory arrest laws,

orders of protection and other prosecutorial options to combat domestic violence are

often ineffective for the victim. Police intervention is often distrusted by victims of

lower income, and ethnic neighborhoods.14 As a result mandatory arrest policies are seen

by these victims as just another assault on their communities.15 Another problem with

mandatory arrest policies has to do with once the abuse is let out of jail. In the mind of

the battered woman, she is going to experience more violence if she calls the police and

her abuser arrested. For this reason many battered women do not feel calling the police

as a viable option to make the abuse stop. Orders of protection are often not enforced, or

an abuser calls the police on the victim and she is arrested. Law enforcement attitudes

also play a role in the trust between victims and police. “Their reactions to domestic

violence may be impacted by degree of training, statutory mandates, or attitudes about

women, perhaps based on a personal history of family violence. These factors contribute

to the trend of victims being arrested and charged with domestic violence offenses.”16 All

of these failures in law enforcement only reinforce the feeling of helplessness a victim

13 Id.14 Barbara Fedders, Lobbying for Mandatory Arrest Policies: Race, Class, and the Politics of the Battered Women’s Movement, 23 N.Y.U. Rev. L. & Soc. Change 281-282, 286-287, 290-296 (1997), reprinted in Domestic Violence Law 2d ed. (Nancy K. D. Lemon ed., Thomson West 2005).15 Id.16 Sarah M. Buel, Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct 26 Harv. Women’s L.J. 217, 229 (2003).

7

feels thus further limiting what she sees to be her options in terms of ending the abuse

and asserting her freedom.

When a battered woman uses lethal force to escape from her abuser she is

essentially using the only means left to her. By this point she understands when she has

the opportunity to break free and the use of violence when her abuser is in a weakened

position is her attempt to revolt against the oppression she has endured for the course of

the relationship. In essence the battered woman, just like Babo, is asserting her natural

right to be free from oppression and violence. It is a natural human inclination to do so

and it just so happens that both of these characters see violence as their only way to

exercise their right to revolt against the bonds of their enslavers.

II.

This idea of a natural right to revolution, to cast off the will of an oppressor is not

a new idea in American society. In his oral argument before the Supreme Court in The

Amistad John Quincy Adams articulated the parallels between the struggle of his clients,

the black men aboard that ship who murdered the crew to sail to freedom, and the

struggle of the American Revolution, and how each were governed by this natural law

and right to revolt:

I know of no other law that reaches the case of my clients, but the law of Nature and of Nature’s God on which our fathers placed our own natural existence. The circumstances are so peculiar, that no code or treaty has provided for such a case. That law, in its application to my clients, I trust will be the law on which the case will be decided by this court.17

In his argument Adams explains that there is no positive law that addresses the

circumstances set before the Court. In his clients’ defense Adams asserts that the only

17 Adams at 9.

8

law that can deliver justice is that law found in nature that guarantees basic human rights,

one of which is to be free from oppression.

The facts of the case are such that this argument played well in front of the

Supreme Court. The black men, defendants in this case, on board the Amistad were

kidnapped from a port in Cuba and claimed to be slaves by the Spanish subjects on

board.18 While at sea and before reaching their port of destination, the defendants

revolted aboard the ship, killing the captain and the crew.19 With these facts the Supreme

Court, Justice Story writing the opinion, had to determine whether positive, man made

law was applicable, or whether it was appropriate for natural law to govern. Robert

Cover submits in his work that Justice story thought about the limitation of positive law

and of the judiciary. Cover argues that Story “hypothesized that the normal remedies –

legislative change or constitutional amendment – would be unavailing should the

oppressed be a minority group.”20 He goes on to quote Story concerning this tension

between positive and natural law in such peculiar circumstances: “If there be any remedy

at all . . . it is a remedy never provided for by human institutions. It is by a resort to the

ultimate right of all human beings in extreme cases to resist oppression, and to apply

force against ruinous injustice.”21 The argument for natural law and the right to use force

in an effort to exercise a right to revolt against oppression won for the defendants in The

Amistad. Justice story writing for the Court says “the conflict of between the parties

under such circumstances, becomes positive and inevitable, and must be decided upon the

eternal principles of justice.”22 The Court reasons here that the positive law does not

18 The Amistad.19 Id.20 Robert Cover, Justice Accused 105-112, reprinted in Melville and the Law 72-76, 72 (Professor Konefsky 2009).21 Id at 72.22 The Amistad.

9

apply. That in fact it the natural law, or the “eternal principles of justice” apply, namely

that all humans have the right to be free.

The Court in this case recognizes just how integral the right to be free from

oppression is to the human condition and accepts the natural right to revolution as a

defense. Story continues in the opinion, “we may lament the dreadful acts, by which they

asserted their liberty, and took possession of the Amistad, and endeavored to regain their

native country; but they cannot be deemed pirates or robbers in the sense of the law of

nations.”23 In applying the natural law and recognizing the right to revolt against

oppression aboard the Amistad the Court concedes that these men cannot be seen as

criminals under the positive law. That in this case they were justified in their actions and

the use of violence was warranted.

In comparison to these men aboard the Amistad is Babo and his revolt aboard the

San Dominick. Perhaps one distinction between The Amistad and Benito Cereno is the

status of the revolutionaries involved. The men in The Amistad were not slaves, they

were kidnapped. Babo, as far as we know through Melville’s story, was a slave and

therefore had no legal standing in the historical context. Yet, a black man in 1841, slave

or free, would not have the same kind of credibility or respect within the legal system as a

white man. So the fact that this natural argument worked in The Amistad is something

Melville could have drawn on in crafting Babo and his revolt. Melville may be making

the point that even when one’s legal status is “slave” the right to revolt against injustice

by any means is not lost.

23 Id.

10

Melville shows the reader throughout the story how Babo exercises his right to

revolution. One such instance in the scene in which Babo shaves Cereno. It seems

peculiar to Delano and is described by Melville as thus:

Not unaffected by the close sight of the gleaming steel, Don Benito nervously shuddered; his usual ghastliness was heightened by the lather, which lather, again, was intensified in its hue by the contrasting sootiness of the negro’s body. Altogether the scene was somewhat peculiar, at least to Captain Delano, nor, as he saw the two thus postured, could he resist the vagary, that in the black he saw a headsman, and in the white a man at the block. But this was one of those antic conceits, appearing and vanishing in a breath, from which, perhaps, the best regulated mind is not always free.24

In this scene Babo uses the threat of physical violence against Cereno in an effort to

maintain the charade he has so elaborately crafted. He needs the masquerade to continue

so he can fool Delano into restocking the ship and so the can achieve his goal of freedom.

You see Babo exercise his right to be free from oppression in this encounter by

pretending to be enslaved. Yet he does so in a way that reinforces the fact to Cereno that

Babo is the one in control. Babo is taking back his humanity by whatever means

necessary, using violence and deceit to keep Cereno and the crew in check, and Delano

clueless about what is really happening aboard the San Dominick.

Perhaps the plainest example of Babo using violence to initiate a revolt is when he

decides to kill Aranda, the slave owner on board the ship. The incident is described in

the deposition of Cereno at the end of the story:

. . . . the negro Babo came to the place where the deponent was, and told him he was determined to kill his master, Don Alexandro Aranda, both because he and his companions could not otherwise be sure of their liberty, and to keep the seamen in subjection . . . . the negro Babo commanded the Ashantee Martiniqui and the Ashantee Lecbe to go and commit the murder; that those two went down with hatchets to the berth of Don Alexandro; that yet half alive and mangled, they dragged him on

24 Melville at 214.

11

deck; that they were going to throw him overboard in that state, but the negro Babo stopped them, bidding the murder be completed on deck before him, which was done . . . . 25

In this passage Babo clearly uses violence to rid himself and his fellow slaves of their

oppressors. He kills Aranda to ensure liberty once they escape to Africa, and it also

serves as a warning to any other white crew members of what their fate may be is they try

to interfere in this revolution. Babo asserts his right to be free from slavery, to be free

from oppression, in the only way he can. His use of violence here is the only means he

has to exercise that right. Killing Aranda means the one who stole Babo’s dignity as a

human is gone, and Babo can reclaim that basic human right. Using violence as a threat

against the rest of the crew serves to maintain an order aboard the ship that Babo needs in

order to achieve his freedom. The revolt and violence depicted in Melville’s tale

illustrates the length to which one will go assert this right to be free. It suggests that the

right to revolution is above one’s legal status and that being free from oppression is

integral to the human condition and personal autonomy.

Like Babo, a victim of domestic abuse does not lose the basic human need to be

free from violence when she is placed in an oppressive set of circumstances. The

limitations Battered Woman’s Syndrome can create in the mind of a victim leaves her

with no choice but to use violence to assert her right to revolt against her oppressor. In

the case of Haney v. State 603 So. 2d 368 (1991), Judy Haney a woman from Alabama

lied to her abusive husband about having a sick aunt to visit in an excuse to stay with her

sister and get away from the abuse for a while. Once in a neighboring city with her sister

and her sister’s husband she was able to drop the charade of normalcy she had been

25 Id at 243-244.

12

maintaining so her husband would not be suspicious.26 She told her family about the

abuse and her fear of what her husband might do when she went back home.27 In an

effort to end the violence once and for all, she paid her brother-in-law to kill her

husband.28 Haney was convicted for murder and sentenced to death.29

The facts of Haney’s case show a woman who is desperate to make an abusive

relationship end. She pretended everything was normal in front of her husband and sister,

much the way Babo pretended to be subservient to Cereno in front of Delano, because

that is what was expected of both of them. Once able to express her need to regain

control over her life, Haney jumped at the opportunity to use the only means she thought

available to her, violence against her husband. In her mind this was the only way to take

back her dignity and personal autonomy. This is the only way she saw fit to throw off

her oppression and make a safe home for herself and her children away from any type of

violence. Haney exercised a right to be free from violence which is as natural to her as it

is to Babo, and as it is to the defendants in The Amistad.

In State v. Kelly 478 A.2d 364 (N.J. 1984) Mr. and Mrs. Kelly were married for

seven abusive years. While walking home from a friend’s house one afternoon, Mr.

Kelly began to choke and punch Mrs. Kelly causing them both to fall to the ground.30 A

crowd formed and someone pulled the two apart.31 Mrs. Kelly went to find their daughter

who had been lost in the crowd and upon finding her Mrs. Kelly realized her husband

was charging towards her with his arms raised.32 Not knowing whether he had armed

26 Haney v. State 603 So. 2d 368, 373 (1991).27 Id.28 Id.29 Id.30 State v. Kelly 478 A.2d 364, 369 (N.J. 1984).31 Id.32 Id.

13

himself, Mrs. Kelly pulled out a pair of scissors from her purse and stabbed Mr. Kelly

before he could inflict any more injury.33 At trial Mrs. Kelly was convicted of reckless

manslaughter.34

In this case the defendant was trying to defend herself from a violent attack. In

her effort to defend herself she was exercising the basic human right to be free from

violence. It was that instinct that caused her to pull the scissors out of her purse to stop

the attack upon her person. Like Babo and like Haney above, Mrs. Kelly had no other

resource at the time to end the violent assault on her. There was a crowd of people

standing in the vicinity by this point and none of them seemed to stop Mr. Kelly from

going after his wife again. This leads to yet another limitation the battered woman faces

in attempting to break free from abuse: no one wants to help her. There is still a

sentiment in society that what happened between couples is there business and no one

wants to get involved. This leaves the battered woman alone to determine a way to end

her oppression. With no one to turn to violence to end the injustice and oppression is her

only option left.

III.

Acknowledging that both Babo and the battered woman have a natural right to

revolt against oppression is the easy part of this analysis. It becomes much more difficult

in getting a court to recognize that right in the course of a criminal prosecution. In

Babo’s case to get a court to allow him to present a defense, and in the case of the

battered woman in getting a court to receive expert testimony on Battered Woman’s

33 Id.34 Id at 368.

14

Syndrome and then fitting that evidence into a justification defense to mitigate the charge

against her.

First in Babo’s case the only testimonial evidence given were the depositions of

Cereno and the few remaining white crew members. Babo’s side of the story is never

presented. He is voiceless throughout the entire legal proceeding. Melville writes of

Babo after being captured:

Seeing all was over, he uttered no sound, and could not be forced to. His aspect seemed to say, since I cannot do deeds, I will not speak words.. . . . Some months after, dragged to the gibbet at the tail of a mule, the black met his voiceless end. The body was burned to ashes; but for many days, the head, that hive of subtlety, fixed on a pole in Plaza, met, unabashed, the gaze of the whites . . . .35

It is as if Babo knows that once brought back to the realm of positive law any argument

he may have about his rights as a human to be free from oppression will be given no

weight. He will be prosecuted as a murdered and put to death. Yet, unlike the defendants

in The Amistad there is no one to represent Babo’s case. He is truly left unrepresented

and voiceless in a process that will determine his fate. The legal system he is tried in

finds the depositions of one side of the story sufficient evidence to try and convict him

for murder.

Babo’s dead, yet “unabashed” gaze reminds readers of his side of the story and

the conviction under which he was operating. To fight for control over one’s personal

autonomy and dignity is integral to human nature. In making Babo so defiant to the end,

Melville reinforces this idea that sometimes what society trusts as the law is not sufficient

to answer all of the difficult moral questions. “The law’s apparent consistency is an

illusion since the facts that determine its shape are not objective but instead represent

35 Melville at 258.

15

dominant ideological interests.”36 Babo’s prosecution then is not a process to seek out

justice and weigh his actions against the natural rights he was exercising. Instead the law

applied and the system in which this positive law operates,

. . . . takes the shape of a closed circle with its center emanating from the power structure of the society and radiating back and forth, to and from that central point. It is not a spiraling or rotating circle that moves from point to point, but a stationary circumscribed form that neither revolves or evolves because no new forces have a means of entering it. Just as the slave ships plied the same sea routes back and forth on the same errand, so too did slave law cover the same ground by its repeatedly repressive decisions.37

This means that as Babo’s prosecution takes place the court just sits back and relies on

the same body of law it always has when dealing with slaves. It does not entertain the

possibility that under these circumstances there may be other possible arguments that

should be heard in the pursuit of justice. It does not conceive of applying any other law,

natural or positive, that they have not applied in the past turning out homogenous verdicts

in dealing with slave issues. The court hearing Babo’s case listened to the version given

by the white captain and crew and then judged Babo’s actions without giving him a

chance to raise any defense, or argue for a the appropriate choice of law. The legal

system in Melville’s fictional world fails humans at a very basic level, and the frightening

part is this is only a reflection of the legal reality that was and still is present.

In comparison the prosecution of a battered woman for a homicide is very similar

to that of Babo’s in the failure of the legal system to truly hear her voice and her side of

the story. Perhaps one of the largest problems in the prosecution of these types of

defendants is the reluctance to present expert testimony on behalf of the defendant, or

36 Susan Weiner, Benito Cereno and the Failure of Law (1992) 113-138 Law in Art, reprinted in Melville and the Law 180-205 (Professor Konefsky 2009).37 Id at 189.

16

when it is presented the reluctance of the court to accept it. Battered Women’s Syndrome

is not a defense in and of itself. If anything, it goes to bolster a claim of self defense, or

acts as a mitigating circumstance.

In the case above, State v. Kelly the question on appeal was whether the lower

court erred in not admitting expert testimony about Battered Women’s Syndrome. In the

case of Mrs. Kelly the testimony offered “was directly relevant to one of the critical

elements that account, namely, what Gladys Kelly believed at the time of the stabbing,

and was thus material to establish the honesty of her stated belief that she was in

imminent danger of death.”38 In order to establish the element of imminence to maintain

a self defense claim the battered women has to have someone explain to the jury the

effects of Battered Woman’s Syndrome, and why one affected thusly would act in such

an extreme manner to take back control over her life. The courts fail to understand , or

take into account that a battered woman “develops a constant fear of serious bodily harm

that she perceives as imminent partially because of the unpredictability of her partner’s

rage.”39 Positive law in this instance fails the battered woman because the defense of

justification does not provide for extreme circumstances where the imminence of serious

bodily harm is constant and the abuse victim is merely waiting for what she sees as her

only chance to escape by any means necessary, including lethal force.

This is why, like Babo, a natural law argument is applicable to the set of

circumstances a battered woman defendant faces. In exercising her right to be free from

violence and oppression, the legal system rejects her argument and characterizes her as a

criminal. Her right to revolt from the repressive lifestyle she lives and take control of her

38 State v. Kelly at 201.39 Sara M. Sandler, Battered Woman’s Syndrome: Setting a Standard in Florida 31 Nova L. Rev. 375, 386 (2007).

17

person is no different from Babo, or from the defendants in The Amistad. While the

battered woman may technically have legal recourse that slaves did not, the failures of

the criminal justice system and law enforcement have not given her any reason to trust

that her rights, and her dignity will be protected.

In addition to the failure to explain Battered Woman’s Syndrome in the course of

their defense attorneys for battered women also make missteps in the way they deal with

their client. “Without adequate knowledge about the devastating impact psychological

abuse, counsel tend to minimize its importance in crafting defenses.”40 If an attorney not

equipped in an understanding of how and when evidence of Battered Woman’s Syndrome

can come into play it serves as a detriment to her client’s case. “If a lawyer downplays

the significance of abuse, a battered client may feel silenced to the detriment of case

presentation.”41 Again, the battered woman can be made to feel voiceless in this process,

especially when her own attorney fails to recognize the significance and extent of what

she’s endured. It is her attorney’s job to help her explain why she used such extreme

measures to free herself from her abuser. Without that help, the battered woman might as

well be “dragged to the gibbet at the tail of a mule” to meet her “voiceless end.”42

While much progress has been made in the courts in allowing expert testimony on

Battered Woman’s Syndrome, “some judges’ unwillingness to apply existing laws

constitutes the greatest impediment to battered defendants receiving a fair trial.”43

“Problematic judges disregard precedent, misuse evidentiary rules, and block admissible

expert testimony, among other troublesome practices.”44 The lack of cooperation from a

40 Buel at 228.41 Id.42 Melville at 258.43 Buel at 234.44 Id.

18

judge presiding over a prosecution of a battered woman ensures that she will remain

unheard in her defense. This is again, like the prosecution of Babo, not an exercise in

finding justice, or recognizing the natural human rights that these defendants have. It

instead becomes another instance where the law is stagnant, and not able to flex in any

way to address the circumstances unique to a battered woman who has committed a

homicide. Judges would rather fall back on the text of the law and decline participating

in any mental exercise to analyze and incorporate a unique set of facts into the legal

framework. In the end it is the battered woman who suffers. She is seen as criminal and

monster, rather than for the human endowed with the same essential rights as everyone

else.

Conclusion

The legal system presiding over the prosecutions of Babo and the battered woman

while centuries apart, still operate in the same way. Rules are emphasized over justice

because of institutional bias or legal malaise. While it is argued in this paper that Babo

and the battered woman should be seen as more than the criminal charges pending against

them, it is hard to do when the law fails elicit their side of the story. Positive law in each

of these cases stunts or prevents any defense to be raised for either Babo or the battered

woman.

In Babo’s case positive law precludes him from making any mention of his rights

under natural law. His right to be free from violence and oppression and the right to use

violence to achieve those goals are not recognized in the least. His legal status affords

him no rights in the eyes of the legal system, yet he can be prosecuted under the same

laws that leave him unprotected. Babo did nothing different than the men aboard The

19

Amistad. Perhaps the distinction between those men being kidnapped, and Babo actually

being a slave would make a difference for a non-fictional court. For Babo though, his

right to revolt against violent oppression is not any less than those men aboard the

Amistad, and it is no less than the men who fought the American Revolution. The natural

right he executed and was then prosecuted for is innate in everyone no matter what legal

status. The legal system he was forced to deal with failed to see that and failed Babo as a

result.

The battered woman in comparison is also endowed with the same natural right to

be free from oppression as every other human throughout history. While Babo had no

legal recourse to fall back on, the battered woman does have legal status in society. Yet

often those legal options are not viable in her mind because of the oppression and

violence. Additionally a battered woman may have tried to rely on police or protection

orders only for the system to fail them. Left with virtually no where to turn and no way

out, the battered woman turns to violence to revolt against the oppression she has been

living with. Like Babo, the bonds of slavery are repulsive to the natural inclination of all

humans to be free and in control of their own destinies. Once she asserts those rights

however, the legal system, premised on the positive law that leaves no room for the

complexities of her life, fails her again. It does nothing to allow the battered woman’s

voice to be heard. Consequently the only violence that is spoken of is her crime, and the

violence she has endured for years remains hidden behind legal definitions for

“imminence” and foundations for expert witnesses.

In both cases the failure of the legal system to give voice to the natural rights

Babo and the battered woman seek to exercise is counterproductive in a search for

20

justice. The system itself becomes a new oppressor after each have asserted their rights

to freedom. It punishes them for wanting the most basic of human desires: to be free.

Ultimately the struggle within the legal system will continue to listen to the voices that

are not heard. To make the law about something more human than strictly black letter

text and rules. Yet it is difficult to keep advocating after numerous defeats. Perhaps

Melville captures the sentiment most closely in Benito Cereno when he essentially asks

“why;” why fight when “seeing all was over, he uttered no sound, and could not be

forced to do so.”45

45 Melville at 258.

21