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Feminist Legal Theory

United States v. Dingwall

Seventh Circuit Holds that Evidence of Battering and Its Effects May Support a Duress Defense

Feminists have long argued that the “reasonable man standard,” a cornerstone of civil and criminal law, leaves women out.1×1. See, e.g., Naomi R. Cahn, The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice, 77 Cornell L. Rev. 1398, 1404–05 (1992); Ronald K.L. Collins, Language, History and the Legal Process: A Profile of the “Reasonable Man,” 8 Rutgers-Camden L.J. 311, 315–20 (1977); Robert Unikel, Comment, “Reasonable” Doubts: A Critique of the Reasonable Woman Standard in American Jurisprudence, 87 Nw. U. L. Rev. 326, 330–36 (1992); Angela Onwuachi-Willig, Essay, What About #UsToo?: The Invisibility of Race in the #MeToo Movement, 128 Yale L.J.F. 105, 109–10 (2018) (examining feminist reasonableness tradition with intersectional lens). It’s right in the name. But advocates have made inroads feminizing the reasonableness standards used in sexual harassment and self-defense law.2×2. See, e.g., Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991); State v. Kelly, 478 A.2d 364, 375–77 (N.J. 1984). Recently, in United States v. Dingwall,3×3. 6 F.4th 744 (7th Cir. 2021). the Seventh Circuit ruled that a criminal defendant may introduce evidence of battering and its effects to support a duress defense, and it rejected a physical proximity requirement for that defense.4×4. Id. at 754, 757. In allowing such testimony, the Seventh Circuit joined the Sixth, Ninth, and D.C. Circuits in a split with the Fifth and Tenth.5×5. See Dando v. Yukins, 461 F.3d 791, 801 (6th Cir. 2006); United States v. Lopez, 913 F.3d 807, 811 (9th Cir. 2019); United States v. Nwoye, 824 F.3d 1129, 1136 (D.C. Cir. 2016) (Kavanaugh, J.); United States v. Willis, 38 F.3d 170, 175–76 (5th Cir. 1994); United States v. Dixon, 901 F.3d 1170, 1173 (10th Cir. 2018). The Eleventh Circuit has suggested that it agrees with the Fifth and Tenth Circuits, but it may not have categorically rejected evidence of battering in this context. See United States v. Sixty Acres in Etowah Cnty., 930 F.2d 857, 860 (11th Cir. 1991); Dingwall, 6 F.4th at 759. Even more than its peer cases, Dingwall furthered the feminist reasonableness project. It also opened the door to other equitable reasonableness analyses.

Marjorie Dingwall and Aaron Stanley began their relationship after meeting at an alcohol abuse treatment center.6×6. Dingwall, 6 F.4th at 747. To rule on the legality of Dingwall’s duress defense, the Seventh Circuit accepted her version of the facts. Id. When housing troubles led Dingwall and her daughter to a homeless shelter, Stanley convinced Dingwall to move in with him.7×7. See id. at 748. Then Stanley started using crack.8×8. Id. He began to abuse Dingwall, first hitting her, then dragging her down the stairs, and finally shooting his gun into her mattress.9×9. See id.

To fund his addiction, Stanley started robbing stores and demanding money from Dingwall.10×10. Id. Dingwall eventually committed three armed robberies for Stanley.11×11. Id. at 748–49. The first was at Stanley’s insistence and occurred while he sat in the car.12×12. Id. at 748. His violence then briefly stopped, “sending the message that committing the crime as ordered was a way to avoid his abuse.”13×13. Id. The second occurred the next day, after Stanley called for more money. Dingwall committed this robbery while Stanley was at work and told him the money came from her mother.14×14. Id. Stanley was “nice” that night.15×15. Id. When Stanley demanded yet another payment, Dingwall committed her third robbery — at Stanley’s suggestion, though again while he was at work.16×16. Id. at 748–49. The police then arrested Dingwall.17×17. Id. at 749. She was charged with Hobbs Act18×18. 18 U.S.C. § 1951. robbery and brandishing a firearm during a crime of violence.19×19. See id. § 1951(a); id. § 924(c)(1)(A)(ii).

Dingwall presented a pretrial motion to admit evidence of “battering and its effects to support a duress defense.”20×20. Dingwall, 6 F.4th at 749. “The duress defense has two elements: reasonable fear of imminent death or serious injury, and the absence of reasonable, legal alternatives to committing the crime.”21×21. Id. at 746 (emphasis added). Dingwall argued that “a reasonable person in her situation” could satisfy both elements.22×22. Id. at 751. Dingwall’s motion included a psychologist’s report that abuse “diminishe[s]” victims’ “capacity to evaluate options,” and that victims “will take whatever action that has the highest predictability [of] stopping the violence.”23×23. Id. at 749 (emphasis omitted).

The district court rejected Dingwall’s motion, citing a lack of Seventh Circuit precedent but hoping to be reversed.24×24. Id. at 750. Dingwall entered conditional guilty pleas and appealed her motion’s denial.25×25. Id.

The Seventh Circuit reversed and remanded.26×26. Id. at 746. Writing for the panel, Judge Hamilton27×27. Judge Hamilton was joined by Judge Wood. See id. at 745, 761. held that expert evidence of battering and its effects may be admitted to support a duress defense, and that the physical presence of a threat is not essential to that defense. To the court, “[e]xpert testimony . . . may help a jury understand the objective reasonableness of a defendant’s actions in the situation she faced.”28×28. Id. at 754–55. “Reasonableness — under both the imminence prong and the no-reasonable-alternative prong [of duress] — is not assessed in the abstract,” but in light of “particular circumstances.”29×29. Id. at 757 (quoting United States v. Nwoye, 824 F.3d 1129, 1137 (D.C. Cir. 2016)). And “a mental condition” is an “‘external, concrete factor’ that may be demonstrated with evidence.”30×30. Id. at 755 (quoting United States v. Dixon, 901 F.3d 1170, 1183 (10th Cir. 2018)).

The court noted that it often considers “personal circumstances under objective standards,” such as in human trafficking and sexual abuse cases.31×31. Id. at 755–56. Most on point, in cases against police officers for excessive force, “both sides routinely offer expert opinions” as to whether “actions were objectively reasonable under the circumstances.”32×32. Id. at 756 (emphasis added).

Further, in this case expert evidence “could help Dingwall meet her burden.”33×33. Id. at 757. On the imminence prong, evidence of battering’s effects might show “[w]hether a battered person in Dingwall’s shoes could have reasonably interpreted Stanley’s” actions “as threats of ‘imminent violence.’”34×34. Id. The court here expressly rejected a physical proximity requirement for imminence: a jury focusing on Dingwall’s circumstances could find that Stanley maintained “control over Dingwall, even when physically separate.”35×35. Id. at 757–58. The court joined the Sixth, Ninth, and D.C. Circuits on this point. Id. at 757. Physical proximity had never been explicitly required for imminence in the Seventh Circuit, but it may have “appear[ed] implicit.” Id. Regarding the alternatives prong, expert testimony could “focus” the jury on the “circumstances Dingwall faced.”36×36. Id. at 758.

Finally, the court distinguished Dingwall from the government’s “gang violence” and “prison cases.”37×37. Id. at 759–60. In the first type, defendants broke the law in fear of gang reprisals but were refused duress defenses.38×38. See id. at 759 (citing, inter alia, United States v. Fiore, 178 F.3d 917, 922–23 (7th Cir. 1999); United States v. Navarro, 608 F.3d 529, 533 (9th Cir. 2010)). Unlike Dingwall, however, those cases contained “generalized threats” and “generalized fear.”39×39. Id. In the second type, prisoners were denied necessity defenses despite acting in fear.40×40. Id. at 760 (citing, inter alia, United States v. Tokash, 282 F.3d 962, 970 (7th Cir. 2002)). To the court, “[p]risons pose special dangers. Excusing otherwise criminal violence . . . poses too great a risk.”41×41. Id.

Judge Kirsch concurred in the judgment mainly to “highlight the limits of [the court’s] holding.”42×42. Id. at 761–62 (Kirsch, J., concurring in the judgment). The court simply announced a rule, leaving to the district court the questions whether “Dingwall’s evidence should be admitted at trial [and whether] she is entitled to a duress jury instruction.”43×43. Id. at 762.

Feminists have argued for generations that male perspectives have shaped legal “reasonableness.”44×44. See, e.g., Cahn, supra note 1, at 1404–05; Collins, supra note 1, at 315–20; Unikel, supra note 1, at 330–36. And feminists have substantially reformed the reasonableness standards used in sexual harassment and self-defense law.45×45. See, e.g., Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991); State v. Kelly, 478 A.2d 364, 375–77 (N.J. 1984). Dingwall advanced this project by considering women’s experiences in the context of duress: that is, to excuse harm done against innocent third parties.46×46. This argument does not deny that many cisgender men, transgender men, and nonbinary people also experience battering. Also, the interchangeable use of “female” and “woman” is not designed to exclude transgender women. Dingwall did that without pathologizing battering’s effects. Finally, the Seventh Circuit provided a template for reasonableness standards that respect the lives of countless diverse groups — what might be called “equitable” reasonableness standards.

The “reasonable man standard” was built around men’s lives.47×47. See, e.g., Cahn, supra note 1, at 1404; Collins, supra note 1, at 315–20; Unikel, supra note 1, at 330–36. For example, the classic case Maher v. People48×48. 10 Mich. 212 (1862). held that a man may have “reasonable provocation” to kill his wife’s adulterous lover, because it is “human nature” for this circumstance to rouse the “heat of blood.”49×49. Id. at 219. Similar cases abound.50×50. See, e.g., Lucinda M. Finley, A Break in the Silence: Including Women’s Issues in a Torts Course, 1 Yale J.L. & Feminism 41, 58–63 (1989) (giving examples); Unikel, supra note 1, at 331–32 (same). But not for women.51×51. See, e.g., Finley, supra note 50, at 58–62. As put by one twentieth-century scholar, “in all that mass of authorities which bears upon [reasonableness,] there is no single mention of a reasonable woman.”52×52. A.P. Herbert, Misleading Cases in the Common Law 18 (4th ed. 1930). And when courts changed reasonable “man” to “person” without more, masculine norms remained.53×53. See Cahn, supra note 1, at 1405; Nancy S. Ehrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 Yale L.J. 1177, 1213 (1990); Finley, supra note 50, at 57–58; Unikel, supra note 1, at 336.

Feminist reasonableness standards, meanwhile, define reasonableness in light of women’s experiences.54×54. See Cahn, supra note 1, at 1400; Unikel, supra note 1, at 336. Advocates in this sphere have never been monolithic, differing on whether courts should use a “reasonable woman standard” or a gender-neutral but woman-inclusive “reasonable person standard.”55×55. See, e.g., Krista J. Schoenheider, Comment, A Theory of Tort Liability for Sexual Harassment in the Workplace, 134 U. Pa. L. Rev. 1461, 1486 (1986) (giving early argument for reasonable woman standard); Unikel, supra note 1, at 340 (arguing for reasonable person standard); Leslie M. Kerns, A Feminist Perspective: Why Feminists Should Give the Reasonable Woman Standard Another Chance, 10 Colum. J. Gender & L. 195, 196 (2001) (defending reasonable woman standard postcritique). Some scholars condemn “reasonableness” altogether. See, e.g., Alena M. Allen, The Emotional Woman, 99 N.C. L. Rev. 1027, 1035 (2021); Ehrenreich, supra note 53, at 1231–32. Theorists agree, though, that women sometimes behave distinctively because of their experiences; that these behaviors have been presumed unreasonable by powerful men; and that they shouldn’t be.56×56. See, e.g., Cahn, supra note 1, at 1415; Kerns, supra note 55, at 196–97; Unikel, supra note 1, at 327–40.

One tool for reformers has been to expose juries assessing reasonableness to expert testimony on women’s typical responses to specific experiences.57×57. See Finley, supra note 50, at 59 n.62; Unikel, supra note 1, at 367 n.260. All jurors can be influenced by the masculine norms that shape reasonableness in common discourse.58×58. See Allen, supra note 55, at 1035. Expert testimony may therefore legitimize women: “The goal is to make the jury see that the woman’s actions are reasonable rather than hysterical . . . .”59×59. Phyllis L. Crocker, The Meaning of Equality for Battered Women Who Kill Men in Self-Defense, 8 Harv. Women’s L.J. 121, 130 (1985). Plus, a woman must get through a “gate-keeper” judge to obtain a favorable jury instruction.60×60. See, e.g., Dingwall, 6 F.4th at 762 (Kirsch, J., concurring in the judgment). Judges are often cisgender men,61×61. See Democracy & Gov’t Reform Team, Ctr. for Am. Progress, Examining the Demographic Compositions of U.S. Circuit and District Courts 3–4 (2020), https://www.americanprogress.org/article/examining-demographic-compositions-u-s-circuit-district-courts“>https://www.americanprogress.org/article/examining-demographic-compositions-u-s-circuit-district-courts/”>https://www.americanprogress.org/article/examining-demographic-compositions-u-s-circuit-district-courts [https://perma.cc/9ZEJ-PFUR]. who might be likely to deemphasize female experience absent expert testimony.

Feminist reasonableness advocates saw early success in workplace sexual harassment law. Sexual harassment plaintiffs under Title VII must generally show that they reasonably felt harassed.62×62. See Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand. L. Rev. 1183, 1202 (1989). Feminists in the late twentieth century argued that courts “must employ a standard that reflects women’s perceptions of sexual harassment” in order to counter “male-centered views of harassment that prevail in many workplaces.”63×63. Id. at 1206. Courts listened.64×64. See, e.g., Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991); Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 962 n.3 (8th Cir. 1993). To the Ninth Circuit, for example, “a sex-blind reasonable person standard . . . tends to systematically ignore the experiences of women.”65×65. Ellison, 924 F.2d at 879. Even courts that rejected a reasonable woman standard often implied that female context informs reasonableness.66×66. See, e.g., Watkins v. Bowden, 105 F.3d 1344, 1356 n.22 (11th Cir. 1997); Radtke v. Everett, 501 N.W.2d 155, 166 (Mich. 1993).

Advocates have also feminized the reasonableness standard used when women defend themselves against violent partners. Studies show that nearly one in three women has experienced partner violence,67×67. Michele C. Black et al., Ctrs. for Disease Control & Prevention, National Intimate Partner and Sexual Violence Survey 39 (2010). and scholars have called battering “a broad-scale system of domination.”68×68. Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1241 (1991); see also Catharine A. MacKinnon, Women’s September 11th: Rethinking the International Law of Conflict, 47 Harv. Int’l L.J. 1, 6 (2006) (calling domestic violence a war against women). But the law long ignored it, considering domestic violence a “private” issue until the late twentieth century.69×69. Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence, 1970–1990, 83 J. Crim. L. & Criminology 46, 47 (1992); see MacKinnon, supra note 68, at 6–8. Courts therefore dismissed women who argued that self-defense was a “reasonable” response to abuse.70×70. See, e.g., State v. Norman, 378 S.E.2d 8, 12 (N.C. 1989). As with harassment, feminists have made significant inroads here. Feminists argued that the “doctrine of self-defense . . . neither contemplates nor acknowledges those acts of self-defense by women that are reasonable, but different from men’s.”71×71. Crocker, supra note 59, at 123; see also Elizabeth M. Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense, 15 Harv. C.R.-C.L. L. Rev. 623, 623 (1980). Many courts now ask juries to consider evidence of battering’s effects in precisely these cases.72×72. See, e.g., Linn v. State, 929 N.W.2d 717, 743–47 (Iowa 2019); State v. Curley, 250 So.3d 236, 237–38 (La. 2018); see also State v. Wanrow, 559 P.2d 548, 558–59 (Wash. 1977) (early case calling for such testimony); State v. Kelly, 478 A.2d 364, 375–77 (N.J. 1984) (same).

Dingwall meaningfully extended the feminist reasonableness project by bringing it to duress. Like in self-defense cases, Dingwall’s battering was a common but long-ignored female experience. A court’s respect for Dingwall in the context of duress might seem a minor byproduct of the feminization of self-defense. It’s more. When courts feminized self-defense, men faced violence when those men abused women. When courts feminized sexual harassment, men faced money damages when those men harassed women. But when courts feminize duress, they excuse violence to “innocent third part[ies]” because other men abused women.73×73. Dingwall, 6 F.4th at 760 n.9 (emphasis added). That is, Dingwall treated women as reasonable even when it was inconvenient. If excusing this harm seems worrisome,74×74. See Laurie Kratky Doré, Downward Adjustment and the Slippery Slope: The Use of Duress in Defense of Battered Offenders, 56 Ohio St. L.J. 665, 749–53 (1995) (expressing this worry). consider that duress already excuses harm reasonably done to innocents in circumstances familiar to men.

Dingwall also has advantages over similar circuit opinions. The Sixth, Ninth, and D.C. Circuits allow testimony on “battered woman syndrome” (BWS) in this context.75×75. Dando v. Yukins, 461 F.3d 791, 801 (6th Cir. 2006); United States v. Lopez, 913 F.3d 807, 811 (9th Cir. 2019); United States v. Nwoye, 824 F.3d 1129, 1131–32 (D.C. Cir. 2016) (Kavanaugh, J.). Calling the response to abuse a “syndrome” is more pathologizing than legitimizing.76×76. See Pamela Posch, The Negative Effects of Expert Testimony on the Battered Women’s Syndrome, 6 Am. U. J. Gender & L. 485, 492 (1998). Further, critics have argued for decades that BWS’s textbook descriptions cover only one type of trauma response, making them limiting to diverse survivors.77×77. See Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev. 1191, 1196 (1993); see also Battered Woman Syndrome, 11 Geo. J. Gender & L. 59, 71–76 (2010) (collecting criticisms of BWS); cf. Marilyn McMahon, Battered Women and Bad Science: The Limited Validity and Utility of Battered Woman Syndrome, 6 Psychiatry, Psych. & L. 23, 23 (1999). Detaching “battering’s effects” from a “syndrome” and calling for updated psychology, the Seventh Circuit held that battered people can be reasonable rather than sick, and chose science over stereotype.78×78. See Dingwall, 6 F.4th at 747 n.2, 755.

Last, Dingwall opened the door to other equitable reasonableness analyses. The opinion’s logic — that “expert testimony may inform a jury about . . . unusual circumstances beyond the scope of a typical juror’s experience,”79×79. Id. at 756–57. even when it is inconvenient — carries far. The Seventh Circuit recognized that the logic applies to police officers and battered women,80×80. See id. so why not low-income people?81×81. See Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 Law & Ineq. 9, 45–52 (1985). Black men?82×82. See Mia Carpiniello, Note, Striking a Sincere Balance: A Reasonable Black Person Standard for “Location Plus Evasion” Terry Stops, 6 Mich. J. Race & L. 355, 358 (2001). Black women?83×83. See Cahn, supra note 1, at 1406, 1434; see also Crenshaw, supra note 68, at 1244 (explaining intersectionality); Onwuachi-Willig, supra note 1, at 109 (arguing for intersectional standards in sexual harassment law). Indigenous people?84×84. See Ian F. Tapu, The Reasonable Indigenous Youth Standard, 56 Gonz. L. Rev. 529, 532 (2020/2021) (arguing “courts should specifically consider and separate out Indigenous youth”). Or more?85×85. See Dolores A. Donovan & Stephanie M. Wildman, Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation, 14 Loy. L.A. L. Rev. 435, 435–39, 466–67 (1981). Indeed, making room for “women” would be incomplete without including transgender women and nonbinary people, who may relate to “womanhood” in complicated ways. Defendants in these groups may do things that appear reasonable to those who understand them, but criminal to those who don’t. This disconnect may emerge from structural causes of criminality or the criminalization of marginalized cultures.86×86. See, e.g., Libby Nelson & Dara Lind, The School-to-Prison Pipeline, Explained, Vox (Oct. 27, 2015, 11:05 AM), https://www.vox.com/2015/2/24/8101289/school-discipline-race [https://perma.cc/XZJ6-9C2Q]; P.R. Lockhart, Living While Black and the Criminalization of Blackness, Vox (Aug. 1, 2018, 8:00 AM), https://www.vox.com/explainers/2018/8/1/17616528/racial-profiling-police-911-living-while-black [https://perma.cc/6X9R-RSMU]. Equitable reasonableness can improve, though not eliminate, the mismatch.

Dingwall did not limit its equitable principle. The one place it came close was in dicta stating that a “generalized, future threat . . . may not meet the ‘imminent threat’ requirement of the duress defense.”87×87. See Dingwall, 6 F.4th. at 759. This “may not” probably means “might not”; the court gave no reason for it to mean “cannot.” Instead, the court suggested “bipolar disorder, major depressive disorder, post-traumatic stress disorder, [and] autism spectrum disorder” could be relevant to reasonableness, indicating that defendant conditions trump abstract requirements.88×88. Id. at 755 n.5. The court did state that, as precedent, “this opinion is limited to battering and its effects.” Id. As above, there is no reason for the court to stop with the listed conditions if expert testimony exists beyond them. This all makes Dingwall a promising tool for defendants.

One might worry that equitable reasonableness excuses too much. But juries and the rules governing expert testimony prevent an unworkable elimination of liability.89×89. See id. at 760–61; Donovan & Wildman, supra note 85, at 467–68. The point is simply this: if a defendant acts as anyone in similar shoes would likely act, the jury and court should consider it. Moreover, even if equitable reasonableness were impractical, recognizing the reasonableness of the convicted may inform sentencing and lend philosophical support to prison alternatives.90×90. See, e.g., Adriaan Lanni, Taking Restorative Justice Seriously, 69 Buff. L. Rev. 635, 678–80 (2021). A second, fair worry is that even this approach favors groups powerful enough to be studied. Equitable reasonableness is progress, not perfection.

Writing on feminist reasonableness standards has slowed in recent decades.91×91. And when the discussion appears, it is often in student writing. See, e.g., Brittany A. Carnes, Case Note, State v. Curley: Modernizing Battered Woman’s Syndrome in Louisiana, 65 Loy. L. Rev. 223, 224 (2019); Michaela Dunn, Note, Subjective Vulnerabilities or Individualized Realities: The Merits of Including Evidence of Past Abuse to Support a Duress Defense, 54 Suffolk U. L. Rev. 347 (2021). Perhaps scholars doubt the utility of their discourse,92×92. See Nicole Newman, Book Note, The Reasonable Woman: Has She Made a Difference?, 27 B.C. Third World L.J. 529, 550 (2007) (reviewing Ann Scales, Legal Feminism: Activism, Lawyering and Legal Theory (2006)). feminist successes in sexual harassment and self-defense are seen as past-tense wins,93×93. The feminization of harassment and self-defense law is not complete. See, e.g., Carnes, supra note 91, at 224; cf. Newman, supra note 92, at 550–56. Theory in these fields also continues to advance. See Vicki Schultz, Essay, Reconceptualizing Sexual Harrassment, Again, 128 Yale L.J.F. 22 (2018). or the monolithic “woman” is seen as ignoring intersectionality.94×94. See Onwuachi-Willig, supra note 1, at 109–10. Dingwall rebuffed each worry. Feminist reasonableness scholarship continues to push the law forward for all.95×95. The Dingwall opinion cited feminist scholarship. See Dingwall, 6 F.4th at 754 (citing Donovan & Wildman, supra note 85, at 445–46).