Written and researched by Hollie Webb and Jean Marie Christy
Heated class discussions are essentially a rite of passage in law school, as studying the law means delving into controversial topics on a daily basis. Often, students were divided by their political beliefs, liberal or conservative, or by life experiences. However, in certain class conversations, we noticed opinions were almost entirely divided by gender.
Various 1L students agreed this was particularly noticeable when criminal law classes discussed “Battered Woman Syndrome.” Also known as battered person syndrome, BWS is defined as the physical and psychological condition of someone who has suffered persistent emotional, sexual, and/or physical abuse from another person, typically a partner or spouse. Possible manifestations of BWS include learned helplessness and debilitating fear.
The examples discussed from our casebooks were extreme. In the North Carolina case State v. Norman, a woman shot and killed her husband in his sleep after 20 years of monstrous abuse. Conflict arose over whether the court should allow the defense to have an expert witness discuss BWS. Proving the defendant lived in constant fear for her life through establishing BWS would allow a defense attorney to attempt a self-defense argument, or at least make a case for diminished responsibility.
In Professor MacDonnell’s class, the counterargument was that because the man was sleeping, the woman was not in imminent danger and therefore should not be allowed to claim self-defense or any other justifications or excuses. Several male students suggested this would encourage abuse victims to take the law into their own hands and allow others to murder a spouse and falsely claim abuse. Female students almost unanimously disagreed. Several mentioned that both the woman’s complete dependence on the abuser and the constant abuse created a situation where she was never unafraid, even attempting suicide in effort to escape. Previous endeavors to leave had only ended in her abuser tracking her down and dragging her back, resulting in further and more severe beatings. (1)
We asked several students why they believed opinions were so strong and so divided.
One student noted, “Both sides were ignoring the fact that it’s an evidentiary argument, not [an argument about] letting someone off the hook.”
One of the men in the class said, “I didn’t personally feel any extraordinary passion about the subject and didn’t feel constrained to offer my own opinion – though I’m really not the kind of person who usually is. Several of my male classmates privately expressed unwillingness to me to venture into the discussion lest they be unfairly attacked by the women in the class… I wonder if others, particularly women, felt a similar sort of constraint and this in some way tilted the discussion? I don’t know-I don’t think politics has much of a place when we’re trying to wrestle with the grittier issues in the criminal law.”
He continued, “The conversation did seem to be mostly men who wanted to be more cautious about the application of BWS and women who offered more full-throated support. I think this is completely unremarkable and unsurprising. As I said above, I think most everyone agreed with the basic framework and I find it perfectly natural that within the narrow space left open for visceral, gut-reaction-type judgement that men and women would generally differ on a topic that intuitively favors one gender over another.”
Another male student said others were “assertive” in their reactions because “from a guy’s perspective, they wondered if the law would be prejudiced against men… maybe they thought they were arguing about BWS getting people off completely.”
He added, “I think most guys reading those cases are not going to think about if it can be a gender issue.”
Several women we asked pointed out that it is a gender issue that goes further than domestic violence cases. Men might not understand how the defendant would reasonably believe she was in imminent danger because they “have never had to be afraid or constantly looking over their shoulder like women do.”
One noted that women are taught from a young age things like to always be looking out for danger and not to walk alone at night. When a woman is raped, the response is often, “Well, she should have been more careful.” The student said these differences in the social conditioning of men and women would affect how the defendant acted.
Another said, “I believe that we’re all equal but, physically, a guy can force you to have sex with him. Guys don’t ever have to be afraid of going anywhere, people don’t tell them how to dress to not be raped.”
She also expressed frustration that the “heat of passion” defense did not provoke the same reaction from male students regarding the potential inequality of its application. If a defendant can prove that the killing happened after a quarrel or certain accepted provocations, what would otherwise be murder can be reduced to voluntary manslaughter. She noted that men weren’t as worried that allowing this defense might also allow a man to kill his wife and falsely claim he was provoked.
The idea that provocation could understandably lead to killing has also made its way into the Model Penal Code. Manslaughter under the MPC is defined as a killing that would otherwise be murder, but “is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.”
Writing in the Emory Law Journal (2), Emily L. Miller commented on this, “The ALI accepted the masculine assumptions of the common law of voluntary manslaughter. Each element of the heat of passion defense originates in a masculine understanding of human behavior. For example, angry men are much more likely to behave violently than are angry women. Female defendants, therefore, are less likely to benefit from the expansion of voluntary manslaughter criteria under the MPC. In addition, society continues to teach that a woman’s behavior should be based on loyalty to her relationships. The double standard then rears its ugly head, teaching that men, on the other hand, are virtually prone to infidelity (3). Accordingly, a woman who discovers that her husband strays is socialized to be less surprised by this behavior and to respond in a non-violent manner. By accepting these masculine assumptions, it should come as no surprise that in MPC jurisdictions ‘most provocation claims still involve claims of injury to male integrity’ and ‘most of the victims are women.’”
The example case in the book was People v. Berry. Here, a man’s murder conviction for strangling his wife with a phone cord was overturned on the grounds that the jury wasn’t given an instruction for voluntary manslaughter. The California Supreme Court said that her taunting and claim of having an affair were “adequate provocation” to incite murderous anger.
Since the Berry case, decades have passed and laws have evolved. Evidence of abuse is now allowed in most jurisdictions. However, there is still a long way to go. Substantial progress will only be made when we stop asking why the victim stayed and instead ask why the batterer abuses.
As one student said, “It’s definitely indicative of a much broader issue in our society.”
(1) Michael Dowd of the Battered Women’s Justice Center in New York has said, “If we as a society cannot make the distinction between real victims and the ‘excusemongers,’ it’s not because there’s something wrong with the battered women, it’s because there is something wrong with us.”
(2) I don’t have my Bluebook and, really, legal research over break? I’ll pass. Here’s a partial citation, however, for anyone interested in the full article (it’s good): 50 Emory L.J. 665
(3) In Joshua Dressler’s article, “Criminal Law: Rethinking Heat of Passion: A Defense in Search of a Rationale” (73 J. Crim. L. & Criminology 421), he cites a 1707 English case to explain why the common law considered the sight of adultery adequate provocation. Regina v. Mawgridge called adultery the “highest invasion of [a husband’s] property.”