State v. B.H.

B.H. objected to the limitation on the battered woman syndrome evidence. The court declined to adjust its charge and, as noted, the jury convicted B.H. of first-degree aggravated sexual assault (count one) and third-degree endangering the welfare of a child (as a lesser-included charge on count two). She was sentenced on count one as if she had been convicted of a second-degree offense, and given a custodial term of seven years. She was sentenced to a concurrent five-year custodial term on count two.

In reversing defendant’s conviction, the Appellate Division held that the trial court erred when it limited the battered woman syndrome testimony to the question of whether defendant acted recklessly by placing herself in a situation in which it was probable that she would be subjected to duress. Specifically, the court stated that in respect of battered woman syndrome evidence the defense of duress was analogous to the justification of self-defense, and that in either setting the jury could consider expert evidence about the syndrome for multiple purposes. Reasoning from State v. Kelly, 97 N.J. 178 (1984), the panel concluded that, when evaluating a claim of duress, the jury must be permitted to consider the battered woman syndrome evidence in order to understand the nature and extent of the threat posed to the defendant by her batterer, whether the defendant had an honest and reasonable fear, and whether the defendant was able to resist the threat.

Lastly, the court directed that, on remand, the jury must not be prevented from considering battered woman syndrome evidence when assessing the reasonableness of B.H.’s conduct toward L.H. in response to the alleged coercion.

N.J.S.A. 2C:2-9 provides:

a. Subject to subsection b. of this section, it is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
b. The defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was criminally negligent in placing himself in such a situation, whenever criminal negligence suffices to establish culpability for the offense charged. In a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter.
c. It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this section. The presumption that a woman, acting in the presence of her husband, is coerced is abolished.

The enactment mirrors the proposal submitted to the Legislature by the New Jersey Criminal Law Revision Commission, and follows identically the language set forth in the Model Penal Code (MPC).

In the commentary that accompanied the final report of the commission, the commission cites the MPC to explain that “[t]he Code rejects the view . . . expounded by some, that one should look to the actor’s ability to withstand the coercion. Instead, it would only allow coercion which ‘a person of reasonable firmness in [the defendant's] situation would have been unable to resist.’” II The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission, cmt. 3 on 2C:2-9 at 71 (1971). By way of further explanation, the commentary adds that the “standard established by the Code is not wholly external” in that the defense allows consideration of the defendant’s “situation.” Ibid. The fact finder may “take account of stark, tangible factors which differentiate the actor from another such as his size or strength or age or health � but not [] matters of temperament.” Ibid.

As explained in State v. Toscano, 74 N.J. 421, 437-38 (1977), the MPC drafters considered the conflicting views of commentators on the subject, some suggesting that the defense should be designed to further the criminal law’s deterrence function by encouraging persons to act against their self-interest when a substantial percentage of persons in similar situations would do so, although detractors were skeptical that such a strict rule would act as a deterrence. Others “advocated a flexible rule which would allow a jury to consider whether the accused actually lost his capacity to act in accordance with ‘his own desire, or motivation, or will’ under the pressure of real or imagined forces.” Id. at 438. The latter rule would have involved a subjective assessment, “focus[ing] on the weaknesses and strengths of a particular defendant, and his subjective reaction to unlawful demands. Thus, [under that approach,] the ‘standard of heroism’ of the common law would give way, not to a ‘reasonable person’ standard, but to a set of expectations based on the defendant’s character and situation.” Id. at 438-39.

Justice Pashman concluded in Toscano that “[t]he drafters of the Model Penal Code and the New Jersey Penal Code sought to steer a middle course between these two positions by focusing on whether the standard imposed upon the accused was one with which ‘normal members of the community will be able to comply. … ‘” Id. at 439. That conclusion is shared by others commenting on the objective nature of the “person of reasonable firmness” standard derived from the Model Penal Code.

Similarly, the code established a duress defense that measures the sufficiency of a threat of coercion against an objective standard that serves society’s interests in carefully circumscribing the defense’s use: the person of reasonable firmness. N.J.S.A. 2C:2-9a. The idiosyncratic ability of a defendant not to withstand a particular coercive threat does not control. That person’s subjective psychological incapacity to resist a coercive threat does not set the bar.

Under N.J.S.A. 2C:2-9a, a successful duress claim must satisfy two distinct components. See generally 2 Paul H. Robinson, Criminal Law Defenses � 177 (1984). The first is that the defendant must be coerced into the criminal action by the asserted “excusing condition.” Ibid. The “excusing condition” has been described as subjective because the defendant actually must have been influenced by it. That assessment necessarily takes into account the defendant’s state of mind. The defendant actually must believe in and be frightened by the likelihood of the threatened harm because the defense rests on principles of necessity.

The second component of the defense is objective in nature: a defendant’s level of resistance to the particular threat must meet community standards of reasonableness. The jury must evaluate a defendant’s response to the threat by applying the standard of the “person of reasonable firmness.” N.J.S.A. 2C:2-9a. The norm presupposes an ordinary person without serious mental and emotional defects. It is an objective standard against which to measure the defendant’s response to the “threat.”

This normative aspect of duress is essential to the defense’s coexistence with society’s duty to protect innocent third parties from harm. The defense does not excuse easily criminal conduct that could, or does, present harm to innocent persons.

A. Defendant sought to convince the jury that she had been subjected to coercion sufficient to support a claim of duress by presenting expert testimony about battered woman syndrome. In order to evaluate defendant’s proposed use of battered woman syndrome evidence, the Court considers two questions: is the evidence accepted as reliable for the purposes advanced, and, is the evidence relevant to the statutory defense.

As to the first question, Evidence Rule 702 controls. Battered woman syndrome expert testimony was scrutinized by those standards in Kelly, 97 N.J. at 208. The expert’s testimony about the syndrome was found to meet the requirements for general acceptance and reliability specifically for the purpose of assisting the jury to overcome common myths or misconceptions that a woman who had been the victim of battering would have surely left the batterer.

It next must be considered whether those accepted uses of expert evidence about battered woman syndrome also are relevent in connection with the components of duress in N.J.S.A. 2C:2-9a, or to the threshold recklessness assessment that a defendant must vault.

B. N.J.S.A. 2C:2-9b requires that:

[t]he defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress.