Intimate Partner Violence and the Duress DefenseDecember 3, 2018 5:25 pm
In August 2005, Queen Nwoye, a Nigerian immigrant living and working as a nursing assistant in Maryland, made an ill-fated decision to begin a relationship with Adriane Osuagwu, a fellow Nigerian immigrant. According to Nwoye, shortly after she and Osuagwu began dating, Osuagwu turned violent. Osuagwu frequently slapped and beat Nwoye on her face and body, sometimes using his shoe as a weapon. In describing the abuse, Nwoye testified that Osuagwu beat her “like a drum.”
To make matters worse, Nwoye and her two small children were living at Osuagwu’s home during the abuse. Osuagwu often threatened to kill Nwoye and bury her in his home, and forced Nwoye to give him her ATM card and PIN. He used her credit cards to make purchases, and even bought two homes under her name.
Around Valentine’s Day 2006, Nwoye confessed to Osuagwu that between 2002 and 2004, she had engaged in an affair with Ikemba Iweala, a prominent Nigerian-born doctor who also lived in the area. Both Nwoye and Iweala were married at the time of the affair. Osuagwu told Nwoye that the affair was “an abomination…where [they] came from,” and that Nwoye needed to have Iweala contact him.  Nwoye initially refused to put the men in touch, but testified that she relented after Osuagwu beat her.
Between late February and April 2006, Osuagwu, with Nwoye’s help, extorted close to $200,000 from Iweala by threatening to expose Iweala’s affair with Nwoye to Iweala’s wife and the medical board. Nwoye provided assistance by meeting with Iweala and picking up money, and telling Iweala that he should do what Osuagwu said to do. Nwoye also followed Osuagwu’s instructions regarding what to do with the money that Iweala had given her or wired to her account. Ultimately, Osuagwu obtained almost all of the Nwoye to give or transfer nearly all of the money to him. Nwoye did so.
In January 2007, Nwoye was charged with conspiracy to extortion. She proceeded to trial and took the stand in her own defense, explaining that she participated in the extortion plot only because of Osuagwu’s threats and violence. Defense counsel requested the jury be instructed on the affirmative defense of duress based on the evidence of Osuagwu’s abuse. The duress instruction provides that even if a Defendant committed a crime, she should be found not guilty if there is sufficient evidence that she, (1) acted under an unlawful threat of imminent death or serious bodily harm; and (2) that there was no reasonable alternative to participating in the crime.
The district court refused to give the instruction. The Court first reasoned that Osuagwu “wasn’t holding a gun to [Nwoye’s] head every day, every minute” and expressed skepticism that the required “imminent threat of death or bodily injury ha[d] been shown.” The Court then found that record was “completely devoid” of evidence of the second duress prerequisite, that Nwoye had no reasonable alternative but to commit the offense. The Court noted that Nwoye attended school without Osuagwu, and that Osuagwu occasionally traveled and left Nwoye home alone.  Thus, the Court found, Nwoye could have avoided committing the crime by escaping or asking for help during the times that she was away from Osuagwu. The jury subsequently found Nwoye guilty and she was sentenced to 20 months’ imprisonment.
The district court’s basis for denying Nwoye’s request for a duress instruction was consistent with a line of cases holding that allegations of intimate partner violence alone are insufficient to support a duress defense. The analysis undertaken in these cases, however, is flawed, given what we now know about domestic violence and its effects.
Reasonable Fear of Imminent Death of Great Bodily Injury
The duress defense first requires a defendant fear imminent death or serious bodily harm at the time the crime is committed. In some cases, the inquiry of whether a domestic violence victim may plead duress ends here. According to these courts, a “generalized fear” of one’s abusive, intimate partner is insufficient. Instead, an explicit threat is required for these courts to find that a defendant had a reasonable fear of imminent death or injury.
The lack of an overt threat, however, does not mean that an imminent threat does not exist, or that a defendant’s belief is unreasonable. In the case of intimate partner violence, victims are often “hypervigilant to cues of impending danger and accurately perceive the seriousness of the situation before another person who had not been repeatedly abused might recognize the danger.” Indeed, just as “prisoners of war or hostages have great incentive to read their oppressor’s behavior accurately,” battered women have “the unfortunate opportunity to learn the behavioral clues that signal danger” in their partners.
And, in considering whether a belief or act is reasonable, the defendant’s “particular circumstances,” must be taken into account. This is true not just in the case of duress, but rather in virtually every reasonableness inquiry under the law. A police officer’s on-the-job experience, for example, is undoubtedly relevant in determining whether he or she possessed reasonable suspicion sufficient for a Terry stop. So too is an abuser’s “pattern of prior violence and abuse” in a duress case.
Applying this principle to Nwoye’s case, her familiarity with Osuagwu’s abuse would certainly qualify as one of the “particular circumstances” that should have been considered in determining whether the threat of harm against her was imminent, and in assessing the reasonableness of her belief.
No Reasonable Alternative
The second prong of the duress defense requires that there be no reasonable alternative to participating in the crime. In cases involving intimate partner violence, courts often seize on the fact that abusers do not, “hold a gun to [their victims’] head[s] every day, every minute.” From this, courts tend to reason that abused defendants could have left or escaped their abusers rather than committing the crime. The problem with this reasoning is that it fails to consider the challenges and danger women may face in leaving abusive relationships and defying their abusers.
Without monetary resources, it may be practically impossible for a woman to leave her abusive partner. Many victims of domestic violence rely, at least in part, on the money their abusers earn to pay for shelter, food, transportation and child care. Indeed, abusers often use money as a means to control and isolate their partners. For these women, leaving such a relationship may mean risking homelessness, hunger, and losing custody of their children. Regarding child custody in particular, studies show that abusers seek custody of children more often than their non-abusive counterparts, and are also awarded custody equally as often.
Additionally, women who leave or attempt to leave their abusers face the very real threat of retaliatory violence. Studies and homicide statistics suggest that abused women are more likely to be killed by their abusers after leaving them. And, the threat of retaliatory violence extends not only to the abuse victim herself, but also to children, family, friends, and co-workers. Fear that an abuser will engage in violence toward someone dear to the victim may well be enough to halt any thoughts of leaving.
So, while Nwoye was not physically prevented from leaving Osuagwu, she may well have felt trapped in the relationship for other reasons. Indeed, while the district court relied heavily on the fact that Nwoye attended school without Osuagwu, Nwoye also testified that Osuagwu “constantly monitored” her when they were apart. Osuagwu even made her wear a Bluetooth headset, so she would always be able to answer his calls.  And, as stated above, Osuagwu allegedly threatened to kill Nwoye and bury her in his house if she defied him. Given this record, a reasonable juror may well have concluded that Nwoye had “no reasonable alternative” but to go along with Osuagwu’s extortion plot.
Lessons From Nwoye’s Case
In 2016, Nwoye finally scored a win. On collateral review, the appellate court concluded she was prejudiced by her trial counsel’s failure to present expert testimony on battered women’s syndrome. An expert, the Court reasoned, could have educated the jury about the realities of intimate partner violence, discussed above. This, the Court found, would have entitled Nwoye to an instruction on duress. Ultimately, the Court concluded that had a duress instruction been given, there was a reasonable probability that Nwoye would have been found not guilty.
In light of this decision, criminal defense attorneys representing abuse victims should make every effort to present expert testimony on the insidious nature of intimate partner violence. That being said, it is disheartening that courts and jurors still require education on the subject. The research on intimate partner violence, discussed above, is not arcane and has been a part of public discourse for years. While certain, specific aspects of the research may fall outside the ken of the average juror, much is common sense. It should not, for example, take an expert to explain why a woman might stay with her abuser and comply with his demands if she thinks he will kill her if she defies him. Yet, according to Nwoye, this is within the realm of expert testimony.
In addition to educating the trier of fact, expert testimony also serves to corroborate a party’s position. In the context of intimate partner violence, it seems that expert testimony is needed more for this purpose—to substantiate the abused defendant’s testimony—than it is to explain complicated, specialized material. Why courts and jurors have trouble believing allegations of intimate partner violence is a mystery, given that it is relatively common. Indeed, roughly 1 in 3 women, and 1 in 4 men, have been the victim of some form of physical violence within their relationships.
While courts should, of course, consider each request for a duress instruction on a case by case basis, it would do the justice system well to keep these statistics in mind.
 United States v. Nwoye, 824 F.3d 1129, 1132 (D.C. Cir. 2016)(“Nwoye III”); United States v. Nwoye, 1:07-cr-00012-ESH (D.C. Dist.) (“Nwoye I”) Doc. 60 at 304.
 Nwoye I, Doc. 66 at 13.
 Nwoye I, Doc. 60 at 309.
 Id at 309-10.
 Nwoye III, 824 F.3d at 1132.
 Nwoye I, Doc. 66 at 2.
 Id. at 6.
 Id. at 14-17.
 Nwoye III, 824 F.3d at 1132.
 Id. at 1133.
 Nwoye I, Doc. 61 at 448-49.
 Id. at 448.
 Id. at 448-49.
 Nwoye III, 824 F.3d at 1133.
 Id. at 1136-37.
 United States v. Sixty Acres in Etowah County, 930 F.2d 857, 861 (11th Cir. 1991), United States v. Hatten, 2010 WL 1815390 at *2 (D. Neb. 2010(Camp, J.).
 Nwoye III, 824 F.3d at 1137, citing Lenore E.A. Walker, Battered Women Syndrome and Self-Defense, 6 Notre Dame J.L. Ethics & Pub. Pol’y 321, 324 (1992).
 Mary Ann Dutton, Validity of “Battered Women Syndrome” in Cases Involving Battered Women 29 (1996), in Department of Justice and Department of Health and Human Services, The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials (1996)
 Nwoye III, 824 F.3d at 1137, see also United States v. Johnson, 956 F.2d 894, 898 (9th Cir. 1992) (“Fear which would be irrational in one set of circumstances may be well-grounded if the experience of the defendant with those applying the threat is such that the defendant can reasonably anticipate being harmed on failure to comply.”)
 See, e.g., United States v. 16328 South 43rd East Ave., Bixby, Tulsa County, Okla., 275 F.3d 1281, 1285 (11th Cir. 2002)(Reasonableness in the forfeiture context); Richards v. Wisconsin, 520 U.S. 385, 394 (1997)(Reasonableness of suspicion in no-knock warrant context); Shapiro v. Township of Lakewood, 292 F.3d 356, 360-61 (3d Cir. 2002) (Whether accommodation was reasonable under the Americans with Disabilities Act.); United States v. Spanish Foods, Inc., 131 F. Supp. 2d 1374, 1378-79 (CIT 2001)(Defining “reasonable diligence.”), Carter v. Huterson, 831 F.3d 1104, 1009 (8th Cir. 2016)(Reasonableness in context of excessive force).
 United States v. Brignoni-Ponce, 422 U.S. 873, 995 (1975), Terry v. Ohio, 392 U.S. 1, 27 (1968).
 Nwoye III, 824 F.3d at 1137-38.
 Nwoye I, Doc. 61 at 449.
 See, e.g., Id. (finding that Nwoye could have escaped from Osuagwu at school or work); United States v. Homick, 964 F.2d 899, 906 (9th Cir. 1992) (Noting physical distance between abuser and defendant at the time of the offense), Johnson, 956 F.2d at 902 (finding defendant could have escaped earlier), United States v. Weis, 891 F. Supp. 2d 1007, 1012 (N.D. Ill. 2012)(Bucklo, J.)(“Battered women also may have trouble proving lack of opportunity to escape, as the duress defense requires.”)
 Dutton, supra note xviii, at 39.
 Nwoye III, 824 F.3d at 1138, citing Lenore Walker, The Battered Woman, 129-32 (1979)
 Dutton, supra note xviii, at 35
 Nwoye III, 824 F.3d at 1137-38, citing Dutton, supra note xviii, at 14-15; Desmond Ellis, Post–Separation Woman Abuse: The Contribution of Lawyers as “Barracudas,” “Advocates,” and “Counsellors,” 10 INT’L J.L. &PSYCHIATRY 403, 408 (1987).
 Id., citing Dutton, supra note xviii, at 14-15.
 Dutton, supra note xviii, at 35
 Nwoye III, 824 F.3d at 1132
 Id. at 1132. On remand, the U.S. Attorney’s Office dismissed the charges against Nwoye.
 Id. at 1140.
 In addition to Nwoye, Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006) also held that the failure to present expert testimony on battered women’s syndrome prejudiced a defendant for Strickland purposes.
 Cf. United States v. Namedo-Ramirez, 781 F.3d 563, 568 (1st Cir. 2015)(Affirming exclusion of expert testimony on battered women syndrome because layperson capable of understanding the issue).
 Nwoye III, 824 F.3d at 1140 (“”Expert testimony on battered woman syndrome could have helped Nwoye ‘dispel the ordinary lay person’s perception that a woman in a battering relationship is free to leave at any time.’”)
 See id. (“[E]xpert testimony on battered woman syndrome would have bolstered the credibility of Nwoye’s testimony about Osuagwu’s abuse.”)
 Center for Disease Control, National Center for Injury Prevention and Control, Division of Violence Prevention, National Intimate Partner and Sexual Violence Survey: 2010 Summary Report (2011)