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  • Allison Norder

“Why Didn’t She Just Leave?” The Judicial Reluctancy to Apply the Domestic Violence Survivors Justic

Updated: Oct 25, 2023

On average, nearly 20 people per minute are physically abused by an intimate partner in the United States, which equates to more than 10 million people per year. Women who are incarcerated are particular prone to fall victim to this statistic. In 2007, a survey of the New York Department of Corrections showed that two-thirds of women incarcerated for killing someone close to them had been abused by that person.*

In May 2019, New York passed the Domestic Survivors Justice Act (DVSJA) which allows a sentencing judge to consider whether abuse was directly related to a person’s crime and, if so, gives judges flexibility in sentencing the defendant to shorter sentences. The law also gives those sentenced prior to its enactment the chance to apply for resentencing. For example, if a judge finds that abuse played a significant role in the commission of a crime, that judge can issue a shorter prison term than the state sentencing guidelines.

This law created what some feel is a safety valve for survivors of domestic abuse who often fall through the cracks of the justice system; however, many judges are reluctant to apply these laws. The Appeal highlights the story of Nikki Addimando, a 31-year-old mother who had been convicted last April for the 2017 death of her boyfriend, who was facing fifteen years to life imprisonment under the New York’s recommended guidelines.

During her trial, Addimondo testified for three days about the consistent abuse she faced at the hands of Grover, including prolonged sexual and physical abuse that was uploaded to a pornography website. Additionally, she testified that Grover had repeatedly threatened to take her life. The jury convicted her of second-degree murder and criminal possession of a weapon and she subsequently filed a motion for consideration under the DVSJA. Despite hours of testimony from her multiple therapists, a psychiatric expert, and medical records documenting her abuse, Judge Edward McLoughlin denied the reconsideration because he found that Addimando’s abuse history was “undetermined and inconsistent, regarding the extent of the abuse, as well as the identity of her abuser(s)” and that “the nature of the alleged abusive relationship. . .is undetermined.” This story is not an anomaly. This is a trend that advocates are seeing all over New York since the enactment of the act in 2019. But this problem is not unique to New York courts.

This poses an important question of how our society, and more specifically the criminal justice system, views the realistic ability for a woman to leave an abusive relationship. The question of “why didn’t she just leave?” is not unique to New York judicial reasoning but is pervasive throughout all of America’s courtrooms and is heavily intertwined within the fabric of our society. Brittany Smith of Alabama attempted to argue that her case qualified as self-defense under the state’s Stand Your Ground law because the man, she shot she alleged to have raped and threaten to kill her earlier that night. The judge rejected the motion reasoning that Smith had “many opportunities to seek protection” without shooting him. In 2015, Illinois enacted similar legislation to the DVSJA, but advocates for the amendment’s passage have only been able to secure two successful resentences under the law thus far. Gail T. Smith, a Chicago attorney says this is an issue that requires a “change in culture. . . for women not to be punished when they act to save their lives.”

Anecdotal evidence aside, the question still persists in both every day citizen’s minds and most importantly in the minds of judges “why didn’t she just leave?” Anywhere between 50% and 75% of domestic violence homicides happen at the point of separation or after the victim has already left her abuser. More specifically, 55% of women killed by their ex-partner or ex-spouse are killed within the first month of separation and that number rises to 87% within the first year. A study titled, Why She Doesn’t Just Leave: The Interaction of Attachment and Perceived Barriers to Leaving an Abusive Relationship was conducted and published in 2016, found no conclusive link between a woman’s level of attachment, level of financial concern, and numerous other factors to their ability to leave. The study shows, on a larger scale, that the cycle of abuse effects a wide variety of women.

So, from a statistical point of view, our society knows the “why” but the question yet to be answered is why judges and juries are unable to view these situations in a light that reflects these findings and the all too common experiences faced by women in our society. To provide historical context, it was not until the early 1990’s that most states allowed any evidence or testimony related to abuse to be presented at trial. Even though courts have come a long way since then, this does not mean that judges freely allow evidence of abuse to be presented to juries. Judges often rely on the elements of self-defense to justify this exclusion of evidence because self-defense in most states requires an immediate danger of physical harm. This idea, regardless of newly enacted legislation, still is pervasive as the main line of judicial reasoning to prevent consideration of abuse to be admitted in survivors’ trials. If a victim of domestic abuse fails to prove the imminence of the threat, then the evidence cannot be admitted proving the act was perpetrated in self-defense. If judges and juries apply this line of reasoning strictly, due to jury instructions or limited access to the evidence of abuse, this cycle will continue.

The only true way to solve this problem is by redefining the way our society and our courts views self-defense to account for the reality of domestic violence situations. The historical reality when self-defense laws were written only account for the traditional “man killing another man of equal strength” scenario. This scenario makes up a very small portion of all self-defense claims and completely prevents women who are in constant fear of a threat from acting in self-defense. While the legislative action of New York and many other states is a step in the right direction, judicial reasoning will simply not change until the standard for self-defense changes and the cultural stigma around domestic abuse victims is still seen in full force.

“I wish more than anything it had ended any other way, I was afraid to stay, I was afraid to leave, that no one would believe me. This is why women don’t leave. … So often we end up dead or are alive but still not free.” -Nikki Addimando

*It is important to note that women of color experience domestic violence at a higher rate than their white counterparts but are twice as likely to be imprisoned for killing their abusive partner in self-defense. Additionally, women of color are three times more likely to die at the hands of a partner or ex-partner than members of other racial groups.


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