Feminism: Legal Aspects

Feminist influence in the criminal law has not been limited to questions of either rape or assault, subordination or formal equality. It has also focused attention on questions of perspective and difference. Self-defense law has been influenced quite dramatically by feminists' insistence that the law failed to accommodate women's "different" perspective. In the case of battered women, for example, feminists urged that the law failed to incorporate the lived experience of battering and lacked the kind of nuanced, contextualized standard necessary for fair adjudication of self-defense claims. As a result, feminists urged the need for legal standards and evidentiary reforms appropriate to women's difference.

The call to perspective led to three important developments in the law of self-defense and elsewhere. First, courts adjudicating criminal cases involving female defendants were asked to address whether the proper legal standard was consistent with "women's particular viewpoint and experience." And some courts did, indeed, adopt legal standards applying the perspective of the "reasonable woman" or the "reasonable battered woman" (Cahn). Second, defense lawyers sought introduction at trial of battered woman syndrome testimony (Schneider). Relying upon the work of social psychologists and others, appellate courts in some cases and legislatures in others began to acknowledge that juries did not understand the different position of women in battering relationships, their perceptions of harm, and their difficulties in leaving. Third, in some cases, governors were urged to award clemency to battered women whose experience had been excluded at trial. In 1990, for example, Governor Richard Celeste of Ohio granted clemency to more than twenty battered women convicted of killing or assaulting the men who abused them on the theory that these women had been convicted under legal and evidentiary rules that failed to consider the relevancy of prior battering to their claims. Governor Schaefer of Maryland followed the next year with several commutations, which led to similar campaigns in other states.

While some feminists urged the need to contextualize the battered woman's situation, others emphasized the degree to which the law of self-defense was skewed toward the male image of a barroom brawl. Some argued that the rules of self-defense were inherently biased against women and that this applied to a variety of questions about the nature of the threat, the degree of its imminence, the proportionality of the response and the duty to retreat. Was it really a fair fight, they asked, if women are typically far less able to respond with their fists? Was it proper to assume that, if the woman had a weapon, it made her violence disproportionate? Did the retreat rule simply impose a duty to "leave" the relationship? Did exceptions to the retreat rule for cases occurring in the home impose an undue burden on those most likely to be victimized in the home?

Debate about these questions soon came to be standard fare for criminal law courses. Juxtaposing controversial cases, like Bernhard Goetz's subway shooting, with battered women's claims, casebooks presented a portrait of law in flux. Much of this debate still centers on controversial cases like the decision of the North Carolina Supreme Court in State v. Judy Norman (378 S.E. 2d 8 (N.C. 1989)). Norman's case was an egregious one. She had been abused for almost two decades; her husband had forced her into prostitution, made her sleep on the floor and other indignities; she had tried to kill herself and, when she sought aid, her husband told the paramedics to let her die. Following upon these events, Norman killed her husband in his sleep. For this act she was convicted of homicide and the North Carolina Supreme Court refused to rescind that ruling based on the defendant's claim of self-defense. For some feminists, Norman is representative of the problems of a law that assumes the battered woman who kills to be a vigilante rather than a victim of her circumstances. For critics, to accept Norman's claim of self-defense is to invite lawlessness. Although much legal commentary has been devoted to the Norman case, and its meaning for self-defense law, some feminists have questioned whether this is the proper focus of the legal inquiry, urging that most battered women kill in confrontational situations, not as in Norman while the man is sleeping (Maguigan).

Over time, there were some changes in the doctrine of self-defense, notably a tendency by courts to be more sympathetic to a "subjectified" standard. The most significant development associated with this contextualized approach, however, was evidentiary: the rapidly spreading approval of battered woman syndrome testimony by appellate courts. Reliance on such evidence moved from murder and assault cases to cover a wide variety of claims and defenses: Posttraumatic stress disorder or battered woman syndrome has been used by defendants under the rubrics of temporary insanity, diminished capacity, and duress in cases as various as fraud, child abuse, and manslaughter. Battered woman syndrome has been borrowed by prosecutors to prove criminal intent in murder prosecutions and to explain why a battered woman might not report the violence or refuse to testify. More controversially, analogues to battered woman syndrome, such as battered child syndrome and other excuses based on prior abuse, have appeared to burgeon in the wake of the success of battered woman syndrome testimony.

Not surprisingly, battered woman syndrome has become quite controversial. High profile cases in which male defendants have sought to borrow the arguments of battered women have caused many traditional scholars to doubt the wisdom of the syndrome, to question its scientific validity, and to emphasize its ability to encourage "abusive excuses" (Wilson; Faigman). This criticism has not gone unnoticed by feminists. Some have openly voiced doubts about whether "reasonable woman" standards perpetuate the very stereotypes that feminists have fought hard to overcome (Cahn). Others have worried that the subjectivity of the standard tends to undermine "women's agency," reimposing ancient images of women as helpless victims (Coughlin; Schneider). Others have suggested that the focus has been on the wrong problem, urging that one needs no special rule, no syndrome, to fit women within conventional self-defense doctrine. Instead, these feminists argue that the real problem is with our image of the battered woman and the law—our image of a woman killing a helpless man rather than a woman trying to leave (Mahoney) or a woman battling a knife (Maguigan).