Murder and the Reasonable Man

Passion and Fear in the Criminal Courtroom

Cynthia Lee

• Publisher: NYU Press
• Year: 2007
• ISBN:
  9780814765142
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

A man murders his wife after she has admitted her infidelity; another man kills an openly gay teammate after receiving a massage; a third man, white, goes for a jog in a “bad” neighborhood, carrying a pistol, and shoots an African American teenager who had his hands in his pockets. When brought before the criminal justice system, all three men argue that they should be found “not guilty”; the first two use the defense of provocation, while the third argues he used his gun in self-defense.

Drawing upon these and similar cases, Cynthia Lee shows how two well-established, traditional criminal law defenses—the doctrines of provocation and self-defense—enable majority-culture defendants to justify their acts of violence. While the reasonableness requirement, inherent in both defenses, is designed to allow community input and provide greater flexibility in legal decision-making, the requirement also allows majority-culture defendants to rely on dominant social norms, such as masculinity, heterosexuality, and race (i.e., racial stereotypes), to bolster their claims of reasonableness. At the same time, Lee examines other cases that demonstrate that the reasonableness requirement tends to exclude the perspectives of minorities, such as heterosexual women, gays and lesbians, and persons of color.

Murder and the Reasonable Man not only shows how largely invisible social norms and beliefs influence the outcomes of certain criminal cases, but goes further, suggesting three tentative legal reforms to address problems of bias and undue leniency. Ultimately, Lee cautions that the true solution lies in a change in social attitudes.

Notes

NOTES TO THE INTRODUCTION

1. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 476 (1897).

2. See, e.g., ELIZABETH SCHNEIDER, BATTERED WOMEN AND FEMINIST LAWMAKING (2000); ANGELA BROWNE, WHEN BATTERED WOMEN KILL (1987); CHARLES P. EWING, BATTERED WOMEN WHO KILL (1987); LENORE WALKER, THE BATTERED WOMAN (1979); Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. PA. L. REV. 379 (1991); Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991); Joshua Dressler, Battered Women Who Kill Their Sleeping Tormenters: Reflections on Maintaining Respect for Human Life While Killing Moral Monsters, in CRIMINAL LAW THEORY: DOCTRINES OF THE GENERAL Part 259 (2002); Laurie J. Taylor, Provoked Reason in Men and Women: Heat of Passion Manslaughter and Imperfect Self- Defense, 33 UCLA L. REV. 1679 (1986); Robert F. Schopp, Barbara J. Sturgis, & Megan Sullivan, Battered Woman’s Syndrome, Expert Testimony, and the Distinction between Justification and Excuse, 1994 U. Ill. L. Rev. 45; Richard A. Rosen, On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. Rev. 371 (1993); Charles Ewing, Psychological Self-Defense: A Proposed Justification for Battered Women Who Kill, 14 Law and Human Behav. 579 (1990); Cathryn Jo Rosen, The Excuse of Self-Defense: Correcting a Historical Accident on Behalf of Battered Women Who Kill, 36 Am. U. L. Rev. 11 (1986); David L. Faigman, Note, The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent, 72 Va. L. Rev. 619 (1986); Elizabeth Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense, 15 Harv. C.R.–C.L. L. Rev. 623 (1980). See also Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. Cal. REV. L. & WOMEN’s STUD. 71 (1992); Elizabeth Rapaport, Capital Murder and the Domestic Discount: A Study of Capital Domestic Murder in the Post-Furman Era, 49 SMU L. Rev. 1507 (1996).

3. There is considerable disagreement over whether dominant social norms help or hurt battered women who kill their abusers. Advocates for battered women argue that dominant social beliefs and attitudes tend to undermine claims of reasonableness by battered women defendants. They point out that the ordinary lay person, unassisted by expert witness testimony on battered woman syndrome, is likely to think the battered woman could have (and should have) left the abusive relationship, and conclude that it was not necessary for her to kill her abuser in order to escape the abuse. Additionally, popular misconceptions about battered women, such as the belief that such women intentionally provoke their husbands, may lead jurors to discount battered women’s claims of reasonableness. Others argue that social attitudes about domestic violence have changed significantly over the last two decades, resulting in sympathy for battered women. See, e.g., Alafair S. Burke, Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman, 81 N.C. L. Rev. 211 (2002); James P. Levine, Juries and Politics 85 (1992).

NOTES TO CHAPTER 1

1. People v. Berry, 18 Cal.3d 509 (1976). I wish to thank Donna Coker for allowing me to review the trial transcripts in this case.

2. A complete defense is one which completely exonerates the defendant. A partial defense exonerates the defendant of the offense with which he is charged, but holds the defendant liable for a lesser offense.

3. In forty-eight of the fifty states, provocation mitigates a killing which would otherwise be murder down to manslaughter. In Washington and Texas, a provoked killing is second-degree murder. See State v. Van Zante, 614 P.2d 217 (Wash. App. 1980); Texas Criminal Jury Charges § 5:30 (2000).

4. Cal. Penal Code § 193 (West 1999).

5. Cal. Penal Code § 190(a) (West 1999).

6. Id.

7. Joshua Dressler, Understanding Criminal Law § 31.07[B][2][a], at 491 (2d ed. 1995). In England, category three was described more narrowly as the discovery by a father of someone committing sodomy upon his son. Dir. of Pub. Prosecutions v. Camplin [1978] 2 All E.R. 168, 171.

8. Under English common law rules, only unlawful acts could constitute legally adequate provocation. Moreover, if the defendant provoked the provoker, he was not entitled to assert the defense of provocation. A. J. Ashworth, The Doctrine of Provocation, 35 Cambridge L.J. 292, 295 (1976).

9. State v. Starr, 38 Mo. 270, 277 (1886).

10. That is, the rationale seems to fit the first four categories if a “serious crime against a relative” means a crime of violence and if an “illegal arrest” means an arrest which is executed with excessive force.

11. In England, category three was more narrowly described as a father discovering someone committing sodomy on his son. Dir. of Pub. Prosecutions v. Camplin [1978] 2 All E.R. 168, 171. Defined in this way, category three only protected male defendants acting on behalf of male victims (fathers defending their sons), not female defendants acting on behalf of female victims (mothers defending their daughters against a child molester).

12. Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. Cal. REV. L. & Women’s Stud. 71, 72 (1992).

13. Laurie J. Taylor, Provoked Reason in Men and Women: Heat of Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. Rev. 1679, 1694 (1986). See also Henderson v. State, 221 S.E.2d 633, 636 (Ga. 1975); State v. Greenlee, 269 P. 331, 333 (N.M. 1928); Shaw v. State, 510 S.W.2d 926, 927 n. 1 (Tex. 1974); State v. Williams, 163 P. 1104, 1108 (Utah 1917).

14. State v. Greenlee, 269 P. 331, 333 (N.M. 1928) (emphasis added).

15. Henderson v. State, 221 S.E.2d 633, 636 (Ga. Ct. App. 1975).

16. Jeremy Horder, Provocation and Responsibility 39 (1992) (noting it was commonly believed that “adultery is the highest invasion of property”).

17. Dressler, Understanding Criminal Law, supra note 7, § 33.06, at 547. Additionally, under what was known as the marital coercion defense, a married woman who committed a crime in her husband’s presence was presumed to have been coerced by her husband into doing so, and therefore could not be held personally accountable for her criminal acts. Anne M. Coughlin, Excusing Women, 82 Cal. L.REV. 1, 31 (1994).

18. Reva B. Siegel, The Rule of Love: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2122–23 (1996).

19. Bram P. Buunk et al., Sex Differences in Jealousy in Evolutionary and Cultural Perspective, 7 Psychol. Sci. 359 (1996).

20. Reed v. State, 59 S.W.2d 122 (Tex. Crim. App. 1933).

21. Id. at 123 (emphasis added).

22. Id. at 124.

23. See, e.g., Reed v. Reed, 404 U.S. 71 (1971) (holding that statutory provision in probate code giving a mandatory preference for appointment as administrator of a decedent’s estate to male applicants over equally qualified female applicants violated the equal protection clause of the Fourteenth Amendment); Craig v. Boren, 429 U.S. 190 (1976) (striking down Oklahoma statute prohibiting the sale of nonintoxicating 3.2 percent beer to males under the age of twenty-one and to females under the age of eighteen on the ground that the gender-based differential constituted a denial of equal protection to males between the ages of eighteen and twenty-one); Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) (holding that state-supported university policy excluding males from enrolling violated the equal protection clause).

24. Elizabeth Rapaport, Capital Murder and the Domestic Discount: A Study of Capital Domestic Murder in the Post-Furman Era, 49 SMU L. Rev. 1507, 1546 (1996).

25. Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. Crim. L. and Criminology 421, 440 (1982).

26. See, e.g., People v. Chevalier, 544 N.E.2d 942 (Ill. 1989) (holding that...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• I Crimes of Passion (The Doctrine of Provocation)
• II Crimes of Fear (The Doctrine of Self-Defense)
• III Rethinking Reasonableness
• Conclusion
• Notes
• Bibliography
• Index
• About the Author
• Footnotes