Will Emotional Terrorism Rule the Courts in the Marissa Alexander Case?

Marissa Alexander, the African-American mother whose warning shot in self-defense landed her 20 years in jail, is at home right now in Florida. Her sentence was overturned in September, and finally—on the night before Thanksgiving—she was released from a jail cell on bond. That means Alexander can sleep in her own bed, run a bath, open a window, look at the sky, and kiss her babies without the sounds of keys and injustice.

Alexander's release from jail marked a powerful moment in a long battle waged by her family and a network of activists across the country for her ultimate freedom. There are conditions to her release on bond. She must wear an ankle bracelet at all times, is under 24-hour house arrest, is subject to warrantless searches of her residence and can only attend court appointments; any other outings must be mandated by the court. Alexander has three children, and her two eldest kids are with her. She is currently in the process of divorcing Rico Gray, her abusive husband who beat her during her third pregnancy and threatened her life the day she fired a shot in self-defense. She cannot contact or communicate with him or his two children—both of whom were in the house at the time of the incident. 

Alexander's new trial starts March 31, 2014. Once again, Alexander will not be able to invoke the stand-your-ground defense that was rejected during her first trial. In that trial, the prosecution argued that since Alexander left the house to go get a gun, before returning and firing the warning shot, she could not invoke stand your ground. Those details will be argued again during the retrial.

Alexander's case speaks to a larger issue that requires careful consideration. The law's failure to grapple with the cumulative impact of domestic violence on a survivor's sense of fear and notion of threat is one such issue. In examining only a single moment, the law fails again and again to navigate the world of a domestic violence survivor. In that sense, Alexander's individual case is symptomatic of a larger cultural issue: our flourishing economy of violence that is sustained by emotional terrorism—its primary weapons being silence, blame and shame.

Rico Gray admitted to being violent toward the five women with whom he has children. In a 2010 deposition, Gray said, “I got five baby mamas and I put my hand on every last one of them except one. The way I was with women, they was like they had to walk on eggshells around me. You know they never knew what I was thinking or what I might do. Hit them, push them.” In that same deposition Rico explained that in a previous altercation he violently pushed Alexander, who fell back into a bathtub and hit her head, causing her to pass out. He was charged and sent to jail for that incident. Gray's statement supports the statistical evidence that domestic violence is rarely a one-time thing and that violence almost always escalates.

We almost always ask the victim, why didn't you just leave? Our economy of violence has an emotional currency: a specific and deadly structure of weapons routinely aimed at women revolving around the tropes of responsibility, silence, judgment, blame and shame. Separation, for example, does not necessarily lead to the end of domestic violence. Research highlights that over 70 percent of the women injured in domestic violence cases are injured after separation. Again, as women are so often held responsible for the domestic violence they suffer, they are also often charged with resolving that violent situation. If they don't, they are blamed. If they survive the violence, they are judged. If they find a way to continue, their trauma is dismissed, negated or trivialized. We routinely excuse and exclude men from being active participants in the domestic violence resolution process. These are the politics of emotionality that shape our intimate relationship with violence.

These politics mean we offer shelter to the violent and punish the violated using another instrument: the law. In Rico Gray's initial 2010 deposition he said: "I honestly think she just didn’t want me to put my hands on her anymore. ...The gun was never actually pointed at me. When she raised the gun down and raised it up, you know, the gun was never pointed at me.”

In her statement, Alexander said Gray's words before she got the gun were: "Bitch, I am going to kill you." Rico Gray would later contradict his entire statement. The judge in Alexander's first trial would go on to write that there was “insufficient evidence [that Alexander] reasonably believed that deadly force was needed,” and that her behavior was “inconsistent with a person who is in genuine fear for his or her life.” Despite the statistical evidence that backs Alexander's fear (according to the US Senate Committee on the Judiciary, domestic violence is the leading cause of injury to women between the ages of 15 and 44 in the United States), the judge dismissed her claims.

What qualifies a judge to measure actions taken from a space of trauma? The judge's remarks reflect the consistent failure to recognize a crucial element within an economy of violence: the cumulative impact of escalating domestic violence on the abused and the legacy of multiple traumas.

The law ignores such histories, and instead, chooses to spotlight single moments. The law's refusal to engage these histories is reflected in research and data about the behavior of attorneys, judges and in the sentencing patterns of women who kill violent husbands or partners in self-defense. The Michigan Women's Justice & Clemency Project found that one woman is murdered by a husband or boyfriend every five days in the state of Michigan. They also found domestic violence victims had higher conviction rates and longer sentences than all others charged with homicide, including those with previous violent criminal records.

Right now, attorneys speculating on the Alexander case are encouraging her to take a plea deal. During the first trial, a plea deal was offered, which Alexander rejected, arguing that she had the right to defend her life. Studies also show that both prosecutors and defense attorneys frequently pressure women who were wrongly arrested and charged to plea bargain. Judges are also major obstacles to fair trials for battered women.

In a 1991 survey of 223 appellate cases of homicide convictions of battered women in California, Holly Maguigan found that judges implement their bias through the exclusion of battered woman’s evidence, denial of self-defense instructions, and/or the repudiation of instructions to the jury on the relevance of that evidence. Their decisions to disregard the failure of law enforcement as well as issues of duress, violence or threat virtually guarantee conviction of battered women defendants. That's what happened in Alexander's case in Florida—the judge failed to properly instruct the jury regarding what is needed in self-defense cases.

Judges and cases in New York reflect similar actions and results. In 1997, Brooklyn Criminal Court Judge Lorin Duckman became the target of fierce criticism due to his handling of domestic violence cases. These included his release of a man who went on to kill his former girlfriend in Queens three weeks after she sought protection from him in the courts. Three hundred and fifty-six accusations of misconduct were made against Judge Duckman, including that he consistently made disparaging comments about black people and women in court. One news report even referred to the judge's own admission of involvement in domestic violence during a 1991 meeting in his chambers.

Rico Gray's escalating violence, Marissa Alexander's reaction and the law's response to that reaction are all supported by a long history of statistical evidence. Time has not changed our economy of violence. It continues to flourish, collecting victims of abuse in its incarceration coffers.

So, what more do we do? In the state of Florida, important battles are being waged against the mandatory minimum sentencing that gave Alexander 20 years. There are also calls to revise stand-your-ground laws, including serial action by the "Dream Defenders." Each action must be actively supported.

There are also bigger questions about our economy of violence and the ways it is protected, sanctioned and sustained by the law—and our politics of emotionality—that need to be addressed. We say in cases like Alexander's that evidence alone is what counts, with no space for emotion. But the facts around domestic violence are supported by myriad studies. Those facts consistently reflect that violence is rarely a single act, it escalates, and too often it ends in homicide. Despite that evidence, that set of established facts, a woman's accusation of feeling threatened, and in fear of losing her life when she chooses to defend her body from a man with a history of domestic violence, is routinely ignored or dismissed. The question of race combined with gender means black women are especially susceptible to being dismissed and denied justice in courtrooms that become a cauldron of discriminatory practice and where humanity becomes some elusive thing, somehow not applicable to black women.

And there is pregnancy. Gray had beaten Alexander during her pregnancy. She gave birth just eight days before the incident. Her baby was delivered prematurely. She may have been suffering from postpartum depression. Studies show 25-45 percent of all women who are battered are battered during pregnancy. These statistics are stories, families, lives, women. In an economy of violence, we become anaesthetized to shocking statistics. Such numbers are rarely entered as evidence in the trials of women who defended their lives and quickly found themselves facing years behind bars.

Who is Marissa Alexander? She is a woman, a mother, a human being. Her case has made national headlines. She has become the face of our flourishing economy of violence. On March 31, 2014, a new trial for Alexander is scheduled to begin. Marissa Alexander could become every woman who has ever faced escalating threat and violence at the hands of her partner and chose to take action in defense of her body and her life. She can be the face of an economy of violence in revolt, shutting down, standing up. Marissa Alexander could be the face of something radical and revolutionary—a legal system looking at a black woman whose actions were backed by a body of evidence and seeing her emotionality and humanity.