On August 3, 1995, 23-year-old Kelly Savage was making last-minute plans to leave her abusive husband, Mark Savage. A few weeks before, Kelly had contacted a battered-women’s organization for advice on how to leave her husband. “Act as normal as possible,” they told her, a common tactic given to women seeking to evade their abusive spouse’s suspicion. For the next few weeks, Kelly quietly amassed what she needed to leave—birth certificates for her two young children (Justin, who was three, and Krystal, who was almost two), medications, and clothes—all of which she hid so that Mark would not find them. She purchased bus tickets to Los Angeles dated the next day, August 4.
That afternoon, Kelly left to cash a check and pick up a few items for their departure. While she was out, she called Mark and asked him what size vacuum bags they needed. In a sworn statement, Kelly said, “I thought that by asking about vacuum bags, Mark would think that I was planning to stick around to use them.” Instead, Mark told her to come home because Justin, her three-year-old son, was not breathing. Medical experts determined that his death was caused by physical abuse.
Like many abusers, Mark had escalated in the days leading up to Kelly’s planned escape. While he had always been violent—he had a habit of throwing Kelly onto the bed and choking her—he had recently tied Kelly to a couch and tried to carve his name into her ankle. Neighbors called the police twice based on the noise they heard. The night before, possibly because he knew Kelly was planning to leave, he had beaten Justin severely enough to possibly cause the brain injuries that killed him. When Kelly returned home and found Justin lifeless, Mark tackled her and threatened to kill her if she called 9-1-1. She did so anyway.
Both Kelly and Mark were tried for Justin’s murder, found guilty, and sentenced to life without parole. Kelly has been in prison now for 19 years, and her pro bono attorneys have recently filed a habeas petition for a new hearing, which is being opposed by California’s Attorney General Kamala Harris. Their argument: The jury never heard about Kelly’s long and painful history of abuse, evidence which shows that Kelly’s case was a textbook example of intimate-partner battering.
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According to statistics provided by the California Department of Corrections and Rehabilitation, there were 186 women serving life without parole (LWOP) sentences in July 2013. This represents about 3 percent of all inmates statewide. The Sentencing Project reported that same year that there are over 5,300 women nationally serving life and life without parole sentences, reflecting an increase of about 14 percent since 2008. About 300 of these women were sentenced to LWOP, which means that California’s prisons alone contain about half of America’s female inmates serving LWOP sentences.
As Kelly’s case shows, a common characteristic of women sentenced to LWOP is their history of abuse. While there’s no exact count of how many women in prison have been physically or sexually abused, most place the odds around 85 to 90 percent—disproportionately high compared to men. As the length of sentence increases, so do the odds that a woman has been abused. Among all women in prison, women who have been sentenced to LWOP sentences are the most likely to have been abused, more so than women serving non-life sentences and men serving life sentences, said Professor Margaret Leigey, a criminologist at The College of New Jersey who has studied LWOP sentencing.
On the surface, the numbers seem overwhelmingly higher. Professor Heidi Rummel, who directs the Post-Conviction Justice Project at the University of Southern California Law School, which assists those convicted of serious crimes, said that, among the women she represented—those sentenced to life or LWOP sentences—the rate of physical and sexual abuse is “basically 100 percent.”
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At trial, Kelly’s prosecutor painted a picture of a woman who not only tolerated abuse, but wanted it. She argued that Kelly “aided and abetted” her husband Mark, pointing to Kelly’s failure to escape sooner or report Mark’s behavior to the police. She told the jury that Kelly was “sadistic” and “narcissistic,” arguing that Kelly helped Mark torture Justin because “she gets to please Mark so, therefore, she gets pleasure out of doing this.”
A witness at Kelly’s trial was her first husband, Michael Alvarado, who testified that Kelly was “strong,” even though Michael beat her, raped her, and threatened to shoot her. He admitted lightly in his testimony to “slapping [Kelly] up the side of her head,” which made the jury laugh.
Intimate partner battering and its effects (once commonly known as “Battered Women’s Syndrome”) are often described as a set of behaviors where women follow their abuser because they are afraid and traumatized. Its symptoms are most similar to PTSD, according to Rummel, and less similar to mental illness, a common misconception.
Arguments like the one Kelly’s prosecutor made are based on long-standing prejudices that such women who live with abusers are selfish and manipulative. In a report submitted in support of Kelly’s habeas petition, Dr. Geraldine Butts Stahly pointed out that women respond to severe and prolonged physical and sexual abuse through a series of survival mechanisms, such as learned helplessness (where victims are too afraid to defend themselves) and traumatic bonding (where victims form an emotional attachment towards their abuser).
The law permits survivors of abuse to present relevant testimony at their trial to show that they may be less culpable for their actions. But many women facing criminal charges never have this opportunity, either because the attorney fails to produce a suitable expert or because the jury misinterprets evidence of abuse. In addition, criminal laws are more male-centered. “When men experience violence,” said Rummel, “they react immediately. The laws are based on duress and provocation.”
Women, on the other hand, often experience ongoing violence, many times from the very people who are supposed to protect them. “They may not react immediately,” Rummel said. They go about their lives. They raise their kids. They move on. Then their rage explodes.”
Under most state criminal statutes, defendants can claim affirmative defenses of duress or self-defense, but these require that such acts be proximate in time and place, failing to address female-specific responses to violence. Women who kill their abusers, for example, often lash out after years of brutal violence. In other instances, women are not the primary actors; they are instead intimidated by their abusive partner and appear to be a co-conspirator. As Rummel suggests, this is an area where the law has not caught up to the psychological reality.
In recognition of this dynamic, California enacted Section 1473.5 of the Penal Code in 2001, which allows women to file a writ of habeas corpus if expert testimony on abuse was not presented at trial. (A habeas corpus petition—literally meaning “you may have the body”—is filed when someone has already gone through the appeals process. It is, in many ways, a petition of last resort.) Originally, the law was intended for women who were convicted of killing their batterers; the law was amended 2005 to include all women who may have been abused. While the law was heralded as a success by women’s advocacy groups, Rummel points out that it can be difficult to prove physical and sexual abuse years—sometimes decades—after the fact. She pointed out, “Witnesses may be gone, passed away, or have forgotten what they saw. Medical records might be destroyed or not available.”
Savage’s case is one of many that fall under Section 1473.5. Attorney General Harris is opposing Savage’s petition despite her record of speaking in favor of regulations that protect women. A successful habeas petition would allow Kelly to present evidence of her history of abuse that was never provided to her trial jury. (Harris’s office was contacted twice for comment on Kelly’s case but provided no response.)
One common misconception is that LWOP sentences are reserved for incorrigible offenders. But, that simply isn’t the case. Kelly, like many other women serving LWOP, is a first-time offender, and they are frequently not the primary actors. LWOP sentences, particularly when given to young people, can mean that someone is serving 40 or more years in prison, and, regardless of an inmate’s desire to rehabilitate, they are never leaving prison alive.
In 1995, Mary Elizabeth Stroder was sentenced to LWOP for a kidnapping and murder committed by her partner. (He is on death row.) Like Kelly, Stroder was not the primary participant in the crime. In a phone interview, Stroder told me that people misunderstood what it meant to survive physical and sexual abuse and that the jury “didn’t understand why I made those choices … people need to understand that we aren’t evil or bad people.” She believed that if the jurors had been allowed to hear testimony about her abuse, they would have better understood why she was present at the crime scene. Tracee Ward, another woman serving LWOP in California, was sentenced for crimes her batterer committed when she was 19. Both Stroder and Ward were first-time offenders who will now never leave prison.
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Because Kelly’s attorney never presented this evidence at trial, the jury never heard about her extensive history of abuse and neglect. Kelly’s abuse began at four, and she was repeatedly raped and assaulted by family members until she ran away from home at fifteen. Then, she suffered abuse at the hands of her two husbands.
Kelly’s case is far from extraordinary and represents both the problems most criminal defendants face in terms of ineffective counsel as well as the many stereotypes and prejudices against survivors. As Rummel told me, domestic abuse happens at home, away from other witnesses, and often by the very people who are supposed to love and care for you the most. “Very few women really disclose the abuse; they go through great lengths to cover it up.”
Kelly’s surviving daughter, Krystal, is now twenty-one; she was only about two when Kelly went to prison. Despite the fact that she may be in prison for the rest of her life, Kelly has tried to better herself during her incarceration by becoming involved in groups that work with women who have survived abuse. “I feel undeserving,” she said over the phone, “because I’ve always been pretty much alone.”