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Feminism: Legal Aspects

The Power Of Norms: Provocation

In the late 1990s, criminal law scholars interested in feminism focused on new topics and old topics in new ways. From the original focus on "women's crimes," such as rape and battering, attention has turned toward the way in which gender norms affect more conventional distinctions within the criminal law, such as the line between murder and manslaughter. Some of this work has served to highlight the role of emotion in the law and how ideas of emotion may carry with them gender norms that influence doctrines as various as duress, provocation, and even the voluntary act requirement (Kahan and Nussbaum). At the core of the shift in thinking is a move not only from surface equality or special treatment of women but toward a recognition of the ways in which cultural norms about relationships may be played out in all criminal law doctrines (Nourse, 2000).

At the center of this work is the provocation doctrine, which divides murder from manslaughter and, in some states, aggravated from less serious assaults. Provocation has been controversial among feminists for some time on the theory that it was a "male-focused" doctrine (Taylor). In the 1980s, this controversy was often targeted on the "cooling time" requirement in the law. Much feminist criticism focused on a widely taught California case, People v. Berry (556 P. 2d 777 (Cal. 1976)), in which a defendant choked his wife to unconsciousness, returned to her home to wait for her for twenty hours, killed her, and claimed, with an appellate court's approval, that he was entitled to argue that he killed in the "heat of passion" (Coker). In the 1990s, however, this kind of argument erupted in the public sphere in response to a widely publicized case in Maryland, in which Kenneth Peacock shot his wife several hours after he found her in bed with another man. In explaining his October 1994 decision to impose a minimal sentence on Peacock, Maryland Judge Robert B. Cahill stated, "I seriously wonder how many married men, married five years or four years would have the strength to walk away, but without inflicting some corporal punishment . . . . I shudder to think what I would do" (Schafran, p. 1064).

The Peacock case ignited public protest and a judicial investigation because the judge articulated the normality of "punishing" women for violating the "rules of relationship." This, in turn, raised new questions about the provocation doctrine. Under conventional criminal law approaches toward provocation, it was thought simply "natural" that a defendant did not have the power to resist the passions inspired by an unfaithful wife. Legal scholarship in the late 1990s, however, challenged the philosophical and normative bases of the idea of emotion as "irrational" or "compelling," suggesting instead that claims of passion were in fact partial claims of reason (Kahan and Nussbaum). Under this view, the provoked killer's claim for our compassion is not simply a claim for sympathy; "it is a claim of authority and a demand for our concurrence" in the reasons for his emotion (Nourse, 1997). This kind of critique made it easy for feminists to emphasize the degree to which the "rationality" of certain emotions may depend less upon psychology than upon social understandings of gender.

The focus on emotion and norms also helped to reinforce earlier shifts in feminist thought away from focusing on women's victimization rather than their agency. In 1991, Martha Mahoney argued persuasively that battered women should not be viewed as victims but as agents, as women who were "trying to leave" relationships rather than women who were inexplicably "staying." New work on provocation tended to confirm Mahoney's efforts to shift the conversation toward women's efforts to leave. Just as self-defense law had failed to see battered women as "agents" seeking to separate from relationships, so too provocation law had failed to see that many of the cases denominated as ones of "passion" were in fact cases in which women had left or were trying to leave (Nourse, 1997). From this perspective, the provocation doctrine, it was argued, was less about protecting "emotion" than about protecting male prerogatives to enforce relationships; indeed, the provocation doctrine seemed to protect, in emotional guise, those who battered and stalked (Coker).

Questions about gender norms and the criminal law are likely to continue in debates about the law of homicide. Serious questions remain, for example, about the ways in which the law incorporates gender norms within the idea, not only of passion, but of time. This is important because of controversies about "imminence" in self-defense claims brought by women and "cooling time" in provocation claims made by men. Some studies tend to show that men and women kill in different circumstances: Although women tend to kill when physically attacked, men tend to kill when their wives leave or are unfaithful. If this is right, then one set of doctrines, self-defense, is likely to govern female murder defendants and another set of doctrines, provocation, to govern the male defendants. This raises the question whether different emotion and timing rules in fact govern these claims and, if so, whether these claims are in fact different because they absorb social norms of gender. Put another way, they raise questions about why the criminal law has tended to see the cuckold-killer as a victim of his own emotions but the battered wife killer as a vigilante.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawFeminism: Legal Aspects - Early Efforts To Reform The Law Of Rape And Battering, The Second Wave Critique Of Rape Law