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Comparative Insights on Feminist Homicide Law Reform Carolyn B

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Comparative Insights on Feminist Homicide Law Reform Carolyn B Journal of Criminal Law and Criminology Volume 100 Article 3 Issue 1 Winter Winter 2010 Provoking Change: Comparative Insights on Feminist Homicide Law Reform Carolyn B. Ramsey Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Carolyn B. Ramsey, Provoking Change: Comparative Insights on Feminist Homicide Law Reform, 100 J. Crim. L. & Criminology 33 (2010) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/10/10001-0033 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 100, No. 1 Copyright © 2010 by Northwestern University, School of Law Printed in U.S.A. PROVOKING CHANGE: COMPARATIVE INSIGHTS ON FEMINIST HOMICIDE LAW REFORM CAROLYN B. RAMSEY* The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for voluntary manslaughter mitigation. Two insights guide this Article’s critique of partial excuses for murder. First, the revised legal history of intimate-partner homicide presented here demonstrates that the modern version of the provocation defense protects a broader class of angry, jealous, predominantly male defendants than the traditional doctrine of the nineteenth century did. Heat-of-passion claims have become the new “abuse excuse” for men. Second, battered woman syndrome evidence, which is now commonly admitted when abused women stand trial for murder, resonates uncomfortably with insanity claims. Reliance on such evidence ignores the fact that “rational moral actor” theories were also raised successfully in the past to defend domestic * Associate Professor of Law, University of Colorado Law School. I would like to thank the Australian National University for inviting me to be a Visiting Fellow during my sabbatical in 2007-2008. I am grateful to Simon Bronitt, Patricia Easteal, Jenny Morgan, and many others for research leads and to Adrian Howe for her hospitality in Melbourne. Alafair Burke, Caroline Forell, Clare Huntington, Sarah Krakoff, Bernadette McSherry, and participants in research workshops at the University of Arizona, the University of California- Berkeley, and the University of Colorado Law Schools provided helpful comments on earlier drafts of this Article. Thanks, too, to Brenna Brackett, Nicole Cedar, Jessie Freer, and Melissa Segers for research assistance. 33 34 CAROLYN B. RAMSEY [Vol. 100 violence victims who killed their partners. Based on these insights, I argue that the most desirable aspects of the Australian reforms emphasize moral judgment about the defendant’s reasons for killing and disfavor concessions to irrationality. Inspired by Australian efforts, legislatures in the U.S. should implement comprehensive reform of homicide law and sentencing. Yet, even if American states retain rigid sentencing structures, this Article advocates the repeal of the extreme mental or emotional disturbance defense and a reconceptualization of the provocation doctrine, guided by substantive equality principles, to require that the defendant’s valuation was justified. Provocation mitigation should be curtailed by categorical exclusions for killings arising from beliefs and passions, including lethal rage at infidelity or the termination of an intimate relationship, that do not comport with evolving social norms. Furthermore, although many battered women charged with murdering a violent spouse can successfully claim provocation under the excuse-based modern doctrine, reformist legislatures ought to provide a new intermediate outcome that fits better with the circumstances of such women’s cases. I. INTRODUCTION Compared to rape doctrine, American homicide law has changed little in response to feminist concerns about the gender bias of the criminal law, aside from the controversial introduction of battered woman syndrome (BWS) evidence in murder trials. Among nations whose law derives from the English model, the United States led the pack in allowing expert testimony on BWS. Yet three states in Australia—a country that embraced BWS defense strategies comparatively late1—have taken the boldest strides toward a feminist transformation of homicide law. Victoria, Tasmania, and Western Australia recently made a move that most American scholars and lawmakers have been reluctant to advocate: they abolished the provocation doctrine as a partial defense to murder. Tasmania took this step in 2003 without making other changes to the law of homicide or the admissibility of 1 See PATRICIA WEISER EASTEAL, KILLING THE BELOVED: HOMICIDE BETWEEN ADULT SEXUAL INTIMATES 141-43 (1993) [hereinafter KILLING THE BELOVED]; Julie Stubbs & Julia Tolmie, Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence of Battered Woman Syndrome, 23 MELB. U. L. REV. 709, 720 (1999) [hereinafter Falling Short] (stating that Australian courts have only accepted BWS evidence since 1991); see also Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 28 (1991) (noting that, in the United States, forensic psychologist Lenore Walker “had introduced expert testimony on battered woman syndrome in sixty-five cases in which battered women had killed or hurt their abusers” by 1986). For more discussion of the BWS theory, including a brief definition, see infra notes 128-32, 210, 233-37, 326-27 and accompanying text. 2010] PROVOKING CHANGE 35 evidence,2 whereas Victoria conducted a detailed study of homicide defenses and then enacted comprehensive reforms in 2005.3 Western Australia followed suit in 2008, abolishing provocation manslaughter and establishing a new partial defense for unreasonable self-protective killings similar to that adopted in Victoria.4 The changes in all three Australian states embodied a substantive equality position designed to remediate gender imbalances in the impact of the criminal law. But especially in Victoria, reformers cited an additional theoretical basis—a moral objection to the modern provocation doctrine’s failure to distinguish legitimate emotions and beliefs from wrongful ones.5 The reformers thus reasserted the relevance of justification, but they were inconsistent about curtailing psychological excuses that reduce culpability in the guilt phase. This Article applauds the three Australian jurisdictions for striving to achieve substantive gender equality in homicide law. However, to some extent, their approaches embody a pragmatic view of feminist reform that can be characterized as doing whatever works for women in the short term and faulted for failing to articulate a coherent normative theory of criminal responsibility. This Article contends that the criminal law should express consistent moral judgments about the reasons the perpetrator committed homicide, not allow male defendants to excuse their equality-denying violence by claiming to have lost self-control, nor make reliance on psychological theories the primary method of defending women. Inspired by the best aspects of the Australian reforms, American states should move away from partial excuses6 for murder that enforce pernicious gender-based 2 Criminal Code Amendment (Abolition of Defence of Provocation) Act, 2003, (Tas. Acts No. 15/2003). 3 Crimes (Homicide) Act, 2005, § 6 (Vict. Acts No. 77/2005). For the comprehensive recommendations of the Victorian Law Reform Commission, see VICT. LAW REFORM COMM’N, DEFENCES TO HOMICIDE FINAL REPORT (2004) [hereinafter VLRC, DEFENCES TO HOMICIDE], available at http://www.lawreform.vic.gov.au/wps/wcm/connect/ Law+Reform/Home/Completed+Projects/Defences+to+Homicide/; see also infra notes 179- 237 and accompanying text (discussing the Victorian Law Reform Commission’s proposals). 4 Criminal Law Amendment (Homicide) Act, 2008, § 12 (W. Austl. Num. Acts No. 29/2008). In November 2009, the United Kingdom abolished the provocation doctrine in favor of a revamped partial defense for “loss of control” that requires either fear of serious violence or a justifiable sense of being seriously wronged. Coroners and Justice Act, 2009, c. 25, Part 2, Ch. 1, §§ 54-56. For a brief discussion of the British reforms, which the British Parliament enacted too late to receive comprehensive analysis in this Article, see infra notes 92, 308-12 and accompanying text. 5 See infra notes 180-82, 187-91, 194-200 and accompanying text. 6 Excuse defenses embody the view that, although the defendant perpetrated a wrongful act, he should not be blamed or punished because a mental defect or other failing makes him less culpable. Insanity exemplifies a classic excuse defense that leads to acquittal. The modern provocation doctrine, which mitigates
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