Femicide and the Law

American Criminal Doctrines

Hava Dayan

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351331777
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores femicide, and scrutinizes the three key American criminal doctrines usually applied in its cases: provocation; the felony murder rule; self-defence. The book also explores the influence of the American Model Penal Code, and proposes, connected to the various criminal doctrines applicable to femicide, a focused and detailed amendment to the Code containing unique features and a formula providing a socio-legal response to issues that the author believes have not yet been adequately addressed. Though primarily focused on femicide in America, the issues discussed are of global relevance due to the tragically widespread nature of femicide, and the book also makes significant contributions to the legal discourse of many other countries with similar legal structures.

1 Femicide and related American criminal doctrines

A preliminary overview

Femicide

The book explores the grievous phenomenon of femicide. This phenomenon is conceptually situated within the broader perspective of violence against women. Such violence is a form of gendered violence, targeted at women or girls.¹ The phenomenon of violence against women is perceived to be part of a larger social phenomenon of male patriarchal dominance achieved and maintained through coercive control.² Such violence may take various forms (physical, visual, verbal, emotional, economic, political or mental), and may occur at various stages of a female’s life (as a fetus, an infant, an adolescent, an adult and as an elderly woman). It may take place in different spheres of life (at home, at work and in the social arena) and may be embedded within and performed through various social spheres (political, legal, racial, religious, ethnic and cultural). The nature of the violence itself may be of varying degrees, forming a continuum with harassment at one end and fatal assault at the other.³ The violence may be explicit, formal and organized but also discrete, sporadic and covert.

While recognizing that violence against women is a multi-faceted and complex issue, this book will limit the scope of its discussion to a particular sub-type of gender violence: femicide. Femicide (or feminicide) is a homicidal form of violence targeted at women and expressed through their actual killing.

Femicide is the major cause of the unnatural death of women⁴ and the seventh leading cause of the premature death of women worldwide.⁵ In many cases family members, frequently the victim’s children or mother, are witnesses to the act of femicide.⁶ Furthermore, femicide, particularly the intimate partner type, often involves the murder of family members or bystanders such as relatives, the couple’s children or the victim’s new partner.⁷ Patterns relating to the murder of women display empirical proximity to the family arena: the women are primarily murdered within the framework of “their family,” i.e., by their partners, usually “after lengthy periods of prolonged physical violence accompanied by other forms of abuse and coercion.”⁸ Indeed, empirical studies on intimate partner femicide in the United States report 79–90 percent rates with regard to history of violence in the relationship. Smith et al.’s study of femicide in North Carolina found a history of violence in about 96 percent of the cases,⁹ and Websdale found similarly high rates (86 percent) in femicide cases in Florida.¹⁰ It is important to distinguish intimate partner femicide from domestic violence, although in some cases the murder of the female partner is the culmination of an existing pattern of violence against her. While violence directed at a female partner aims to achieve control and obedience, killing her is intended to bring about her ruin – more specifically her death.¹¹

Femicide has certainly gained global notice in recent years along with efforts towards its eradication.¹² Alarmed by the fact that femicide was increasing throughout the world, the Academic Council of the United Nations conducted a series of symposiums in 2012, urging member states to undertake steps to prevent femicide.¹³ The United Nations Vienna Declaration on Femicide, in conjunction with the Commission on Crime Prevention and Criminal Justice (2012), refers to various modes of female killings that may be carried out in different social, political, cultural and religious circumstances. According to the Declaration, these can take the form of, inter alia: (1) murder of women as a result of intimate partner violence; (2) torture and misogynist slaying of women; (3) killing of women and girls in the name of “honor”; (4) targeted killing of women and girls in the context of armed conflict; (5) dowry-related killings of women; (6) killing of women and girls because of their sexual orientation and gender identity; (7) killing of aboriginal and indigenous women and girls because of their gender; (8) female infanticide and gender-based sex selection feticide; (9) genital mutilation-related deaths; (10) accusations of witchcraft; and (11) other types of femicide connected with gangs, organized crime, drug dealing, human trafficking and the proliferation of small arms.¹⁴ Different types of femicide relate to the different stages of female life. These may include female feticide (the killing of female fetuses), female infanticide (the killing of female infants), uxoricide (the killing of spouses), sororicide (the killing of sisters) and matricide (the killing of the female parent).

The term femicide was coined by Russell and introduced in the book written with Radford and published in 1992. In their seminal book, femicide is defined as the misogynous killing of women by men,¹⁵ which takes many different forms shaped and changed by culture and context.¹⁶ Russell and Radford argue that these diverse forms may refer to racist femicide, homophobic femicide, lesbicide, marital femicide, femicide perpetrated by strangers, serial femicide, mass femicide and the deliberate transmission of AIDS that results in death. Radford prefers an expansive definition of femicide, one that does not refer exclusively to intentional killing of women, but rather “situations in which women are permitted to die as a result of misogynous attitudes or social practices.”¹⁷ Among such social practices she mentions a broad spectrum of practices embedded in patriarchal gender-based violence: the death of women and girls resulting from botched abortions, unnecessary surgery of females and misogynous neglect or starvation of female infants and women.¹⁸ According to Russell, femicide is the end result of various forms of terror against females that result in death:

Femicide is on the extreme end of a continuum of antifemale terror that includes a wide variety of verbal and physical abuse, such as rape, torture, sexual slavery (particularly in prostitution), incestuous and extrafamilial child sexual abuse, physical and emotional battery, sexual harassment (on the phone, in the streets, at the office, and in the classroom), genital mutilation (clitoridectomies, excision, infibulations), unnecessary gynecological operations (gratuitous hysterectomies), forced heterosexuality, forced sterilization, forced motherhood (by criminalizing contraception and abortion), psychosurgery, denial of food to women in some cultures, cosmetic surgery, and other mutilations in the name of beautification. Whenever these forms of terrorism result in death, they become femicides.¹⁹

Femicide as a concept and a term was promoted as an alternative to the genderneutral term “homicide” in order to highlight the killing of women because they are women. According to Radford and Russell, the term “femicide” had a political purpose, intended to alter the prevailing understanding of the violent death of women. They claimed that naming the phenomenon “gives women’s experiences and understandings priority over men’s intentions and as such is consistent with one of the basic tenets of feminism – women’s right to name their experience.”²⁰ Thus the coining of the phenomenon was part of feminist action and theory to find, create and redefine words that reflect and record women’s experiences in general and violence against them in particular. It was the feminist notion that “Names provide social definitions; make visible what is invisible; define as unacceptable what was accepted; make sayable what was unspeakable”²¹ that spurred the intentional coining of the term and naming of the phenomenon. The naming did not create the phenomenon of women killing. Women were killed long before the phenomenon was named and delineated. However, the gender-neutral term “homicide” lacked the gender-sensitive terminology crucially needed for the real and fact-based description of particular gender-based fatally violent events. The new term for the old phenomenon of women-killing aimed to re-conceptualize the homicide phenomenon and reconstruct women’s social experience by voicing what was until then unvoiced: the recognition that the violent death of women is a crime in and of itself, not to be confused with the gender-neutral terms “homicide,” “killing,” “murder” or “manslaughter.”²²

The term was not only coined for the sake of describing reality as such. Reframing the term as a social and political problem had a constructivist purpose.²³ It aimed to re-construct social reality through a gender-sensitive perspective. The practice of “naming” and “renaming” this gendered-based violent social phenomenon was part...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright page
• Table of Contents
• Preface
• Acknowledgements
• Introduction
• 1 Femicide and related American criminal doctrines: a preliminary overview
• 2 “Either mine or dead”: intimate partner femicide and the American criminal doctrine of provocation
• 3 “The straw that broke the camel’s back”: assaultive-femicide and the American felony-murder rule
• 4 “To kill or be killed, (when) that is the question”: femicide and the American criminal doctrine of self-defense
• 5 Preventing femicide: proposed statutory amendments to the American Model Penal Code
• Bibliography
• Index