The news report below is encouraging….the comments that the ignorant made are disgusting, but this is how DV Survivors are treated.

Supreme Court sets new precedents in domestic violence

by Andrew Clevenger

It was big news last week when the state Supreme Court reversed and vacated Tonya Harden’s 2007 murder conviction. Harden, you will recall, killed her husband, Danuel Harden, with a shotgun he had used to beat and threaten her during what Justice Menis Ketchum described as a “night of domestic terror.”

Tonya Harden(That’s Harden’s booking photo, from September 2004, on the right. Her two black eyes are obvious, but the puncture wound to her right forearm, bruising to her chest and arms and her fractured nose aren’t visible.)

By a 4-1 vote, with Chief Justice Brent Benjamin dissenting, the justices ruled that the physical and sexual assaults by Harden’s husband and his threats to kill her and their children informed her state of mind and were relevant to her claim of self-defense.

As Angie Rosser of the West Virginia Coalition Against Domestic Violence and the Associated Press’ Tim Huber have pointed out here and here, the 44-page opinion sets some new precedents in West Virginia law. It’s a pretty big deal when the Supreme Court issues new precedent, so the new syllabus points are worth repeating here:

–Where a defendant has asserted a plea of self-defense, evidence showing that the decedent had previously abused or threatened the life of the defendant is relevant evidence of the defendant’s state of mind at the time deadly force was used. In determining whether the circumstances formed a reasonable basis for the defendant to believe that he or she was at imminent risk of serious bodily injury or death at the hands of the decedent, the inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is to say that the defendant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when considering all of the circumstances surrounding the defendant’s use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), is expressly overruled.

–Where it is determined that the defendant’s actions were not reasonably made in self-defense, evidence that the decedent had abused or threatened the life of the defendant is nonetheless relevant and may negate or tend to negate a necessary element of the offense(s) charged, such as malice or intent.

–An occupant who is, without provocation, attacked in his or her home, dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be upon the premises, may invoke the law of self-defense and in such circumstances use deadly force, without retreating, where the occupant reasonably believes, and does believe, that he or she is at imminent risk of death or serious bodily injury. In determining whether the circumstances formed a reasonable basis for the occupant to believe that he or she was at imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that the occupant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the occupant’s belief must be objectively reasonable when considering all of the circumstances surrounding the occupant’s use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909), is expressly overruled.


1 Courtney { 06.17.09 at 10:15 am }

Do you know what the opinion says? It says that this woman was justified in killing her husband in cold blood. That’s what it says. The DV advocates are rejoicing but if the genders had been reversed, they’d be singing a different tune. What this opinion does is give abused women an exception to the murder statute. They can lay in wait and kill their abusers. But if a man ever advances this defense, I have a feeling the outcome will be different. The cour has basically crafted an exception to the murder statute with this opinion, for abused women. But according to the language of the opinion, anyone in a situation where they felt they were in danger could put on this defense. However, the DV advocates consider it a victory for abused women. Now what’s wrong with this picture?

2 Courtney { 06.17.09 at 10:17 am }

P.S. – for anyone who feels threatened in their own home, I meant.

3 Expatriate { 06.17.09 at 10:36 am }

Courtney, clearly you know nothing about the psychology associated with being a battered woman or have been battered yourself, or you would not make such ignorant statements. And what I find most intriguing is that this sort of comment would come from a woman. How progressive of you! I have said for years that we women are our own worst enemies. Your comments are proof of that assertion.

4 Courtney { 06.17.09 at 10:53 am }

Expatriate, I live with it for the five years of my marriage and for five more after that. And typical of women, you attack me personally for not agreeing with you. I too was trapped and it took me five long years to extract myself. And I can tell you that if there had been a gun in that house, one of us would be dead today. I thought myself about waiting until he passed out and killing him with a baseball bat, but I was afraid I’d just make him mad.

You have a lot of nerve to attack me because I am objective aboout this opinion. You think DV victims deserve an exception to the murder statute and the court agrees with you. So you are in the catbird seat. I disagree and you call me backward, ignorant and undermining. YOU girl are Exhibit A of what’s wrong with women.

Because I lived with a mentally ill (he was committed shortly after our divorce and has been in and out of mental insitutions since) violent drunk and because I worked myself free and am no living well, I might be actually harder on these women because I know it can be done. I also know that I wouldn’t kill the SOB because he was my children’s father (odly he was a very good and kindly father) and they would be left to the system if I were in prison. So I did what was best for them. I finished school, I left, I married well and was able to give them a good life.

(edited to remove objectionable language, personal attack)

5 Courtney { 06.17.09 at 10:58 am }


A defenseless man was shot and killed in his hospital bed by his estranged wife. Where are you rightous types and your candle light vigils? Maybe his wife will invoke this opinion by saying she was emotionally battered and had been threatened, and felt he would kill her.

Under the language of this opinion, she can advance self defense theory at trial.

The court regularly carves out exceptions to the law to benefit particular litigants. But with this case, they set new precedent. They said that with a “reasonable” fear, a victim of domestic violence could kill her spouse in cold blood.

Now you, are a little hypocrit. This opinion advocates vigilante justice and murder. Isn’t that what you’re against?

Those close to the investigation know a lot you don’t know, things that couldn’t come into trial and therefore, not in the appeal record. You dear, are the ignorant one.

6 Nature Boy { 06.17.09 at 11:19 am }

Courtney, you are entitled to your opinion and I will not call you names for it. I do disagree with you. If you read Angie Rosser’s Op-Ed linked in at the beginning of this blog or you can cut and paste to your browser from here http://www.wvgazett e.com/Opinion/ OpEdCommentaries /200906120470 this is an important decision for victims of domestic violence. You explained that you were able to escape your circumstances of abuse and better your life, and for that you are both lucky and to be congratulated. But what of the next woman? The women like Harden? I do not understand domestic violence, and cannot for the life of me understand how a man could do what this man did to Mrs. Harden and their children. What I do know is that if someone were treating me like that or threatening my kids like that, I would hope that the law protected me and my right to protect my kids and myself. From reading the news and op-ed articles and the court decision about Mrs. Harden, it sounds like the law almost failed to protect her, because I do not see what she did as deserving prison time.

7 Courtney { 06.17.09 at 11:48 am }

Nature Boy, Expatriate could learn a few lessons from you.

I will tell you why I’m disturbed by this opinion and the response of the DV advocates to it.

First of all, I believe the law is the law and as much as some people would like to, it shouldn’t be bent or distorted to accomodate sympathetic litigants.

Before this decision, the bar was fairly high for proving self defense. That is because you can’t have people going around and killing each other then screaming self defense. It’s not the Old West. Before Harden, a person had to be in imminent danger. That meant someone was actively trying to kill them and they defendend themselves.

In Harden, this woman waited until her husband was passed out drunk on the couch (the court glossed over this but it was established by investigators) then took a shotgun, put it behind his head and shot him, literally spraying the area with brain matter and moving his eyeball to his cheekbone.

The court has now removed the immenent danger element of self defense and replaced it with the subjectively reasonable standard. That means what is fear of death depends is fact based and in consideration of what a person PERCIEVES as the threat of death or bodily injury. They further carved out this murder exception for people who are co-habitating.

To people like Expatriate, violence is okay when someone has it coming as in Harden. That’s what the opinion really says if you read between the lines. These DV advocates claim to be against violence yet they are advocating violence by saying this opinion is a victory for battered women.

This opinion nor DV experts contemplate personal responsibility excpet to eliminate the duty to retreat, and as a former DV victim, I can tell you that simply being a victim should not exempt the victim from accountability.

When I was living the nightmare of domestic violence, my chief concern was my children. I did not want them growing up in such an environment. They kept me from killing their father. I also did not want to face them and explain why I murdered their dad and why they would be growing up with a dead father and imprisoned mother. So I was motivated to do the right thing by them.

Now I’m free. I raised them in a good environement and educated them both. They had trips and good clothes and a nice house and cars on their sixteenth birthdays (I actually overcompensated I think) none of which they would have had if I’d been in prison. But if this opinion had been out and I knew about it and I had in fact kept a gun, things might have been different.

We shall agree to disagree. Then see how this opinion plays out in the court system if a man tries to raise it as a defense.

8 Courtney { 06.17.09 at 12:13 pm }

Another P.S. I’ve had a down morning but that’s over so I won’t be able to follow up to the attacks from people like Expatriate who think that because they are righteous in their beliefs they can personally attack those who don’t agree with them.

The Harden opinion removed very important deterrent elements from domestic violence situations. Rather than promoting women to flee a home of violence and take some sort of responsibility for a potentially deadly situation, it tells them they can skip divorce court and go straight for the shotgun.

That’s a fact and the DV advocates need to own up to the subtlties and implications of this decisions. If the goal is to get women out of abusive sitations then this opinion is a set back.

Last week a woman, estranged from her husband, shot and killed him while he lay helpless in the ICU of the hospital. Clearly that man had a reason to fear for his life. Under Harden, he could have killed the wife before she killed him – that what Harden says, “wait ’till he’s asleep and kill him before he kills you.”

But then you can imagine how that would have gone over with the myopic jerk knee advocates.

In the past two weeks, two men in Charleson have been killed by wives or estranged wives. Watching how their deaths have played out in the media is a prime example of why the system is flawed. As an objective person who believes in seeing both sides of every story, I find it disturbing. But by doing so, I am an enemy of women according to people like Expatriate.

I’ve said my piece.

9 Previously Bruised & Battered { 06.17.09 at 1:03 pm }

I for one am just as excited about this change in precedent as the DV Advocates. The law has not exactly stood behind victims of domestic violence, on the contrary, a lot of times, it forces them to be in the situation.

I have personally experienced this…. 5 years ago, as I stood, crying, beaten, bloody and bruised from face to feet, I had a police officer tell me that my beating (with my baby in my arms) was MY FAULT, because I let my abuser come home. It did not matter that after he left, and I changed the locks so he could not come back, that same police department told me I HAD to let him come home, because his name was on the lease too. I was also told I could not have him removed from the lease without his permission. This same police officer threatened to arrest me if I decided to file charges against my abuser, because I defended myself, and he had a BITE MARK. I did not file charges because I had children that needed me to be at home with them. I did file for an order of protection, and was granted one, but only after my abuser was given the right to stay in our apartment, and myself and our children were forced to leave (I was from here, he was not, so the judge determined that I could stay with relatives) with only a few personal belongings that my abuser chose to let me take (while a police officer watched).

To make a VERY long story short… I can understand why women choose to kill their abusers… why not kill them instead of continue to be abused by them, or you can try to take the legal route and be abused all over again. I somehow managed to get back on my feet and me and my children now have a good life… Do I wish that I would have killed him… yes, sometimes I think it would have been easier than dealing with the 2 years of legal hell I had to endure trying to fight (in court) the man who tried to kill me in front of my children.

Am I saying this is always the case? No. But it happens. Courtney, you call victims of domestic violence sympathetic litigants… I see them for what they are…. VICTIMS. It does not matter their gender, if someone is abused, beaten or killed by their significant other, they are a victim. I am happy that you made it out of your situation… you were fortunate. Perhaps you should attend one of the candlelight vigils (there are plenty) that are held all over the US in October as a remembrance to those who have lost their lives to domestic violence (my great-grandmother was one)…. it may change your perspective.

10 J { 06.17.09 at 1:37 pm }

Really, cut the BS. The woman could have left while he was passed out. Instead, she chose to get a gun and shoot him while he couldn’t defend himself. To say that she’s justified is to condone vigilante justice.

DV advocates ignore the fact that it’s not always one sided. Rather than empowering women, teaching them that they’re equals with men, and promoting non-violence, these organizations have devolved in to the most base of gender-hate clubs, and now it’s apparent that they cheer outright murder.

11 Dawn Miller { 06.17.09 at 2:08 pm }

Thanks, all, for commenting. Just a reminder of the rules:
Disagree all you want, but no personal attacks, please. Thanks to Nature Boy for pulling the discussion back on topic.