Criminal Law and Women: Giving the Abused Woman Who Kills a Jury of Her Peers Who Appreciate Trifles

Article excerpt

I. Introduction II. Stories

A. The Story--"Fiction"

B. The Story--"Fact"

C. A Jury of Her Peers as a Pedagogic Device III. The Law; History and Politics

A. Jurisprudential Debates Affecting Women

B. The History of Legalized Woman Abuse: Roman, English, and

Early American Law

C. The Right to Vote: A Black/White Split

D. The Supreme Court's Early Decisions

E. The Vote Connected to Jury Service

1. The Law Reviews

2. The State Courts

IV. Facts: The Reality of Woman Abuse

A. Statistics & Patterns

B. Newspaper Reports on Known and Unknown Women

C. Efforts to Evaluate, Control and Respond

1. The International Arena

2. Professional and Religious Organizations

3. The Official Players: Reports, Lawsuits, and Arrests

4. The Jury Studies

V. Substantive Criminal Law

A. Making Value Judgments

B. The Reasonable Man and the Insane Woman

1. The Common Law

2. The Model Penal Code

a. Extreme Mental or Emotional Disturbance

b. Self-Defense

3. Equal Application and Favorable Interpretations

C. Facts: Male and Female

1. Different Concepts of Time

2. Different Definitions of Emotional Self Defense

3. A Woman's World

VI. The Modern Era and Still No Jury of Her Peers

A. The Beginning of the Modern Era: Ballard and Fay

B. The Voluntary Exclusion Cases: Hoyt and Taylor

C. The Peremptory Challenge Cases for African American Males

and All Females: Batson and J.E.B.

VII. Conclusion

I.INTRODUCTION

In the spring of 1985, I drove from Philadelphia to Chestnut Hill, Massachusetts, to attend a women's conference.(1) After registration and dinner, the conference started with a film version of Susan Glaspell's Trifles,(2) a 1916 one-act play about an abused wife who kills her abusive husband. The next morning &mall groups discussed the film. The three men in my group dominated the discussion. One informed us that he had represented the Black Panthers and instructed that the only true route to equality was through violence. Women, therefore, had to learn to use violence to achieve political equality in America. I finally responded that I knew of no instance in history of women as a group using violence to achieve feminist political goals. The woman facilitator at that point blurted out "Lysistrata!"(3) I pointed out to her that a woman's saying no to sexual intercourse was not violent but could lead to a violent male reaction.

The only memento I took back to Philadelphia--one that has been a tremendous influence on me, my friends, colleagues, and students--was the short-story version of Trifles, called A Jury of Her Peers.(4) The story is written from the perspective of those closed out of a legal system--in this instance, women--and how they react when that legal system is about to destroy one of their own. Women did not make homicide law as it existed in 1916: they were not judges; they were not members of state legislatures; they could not vote until 1920;(5) and they could not serve on juries in most states until the 1940s.(6)

I begin discussions of A Jury of Her Peers by asking what evidence the women in the story saw that the men did not. The women in the story start from different facts and reach different legal conclusions than the men in the story. The men's views of fact and law reflect our traditional legal system, which men created and continue to dominate. My question about evidence is about perceptions and leads to a discussion of how different experiences and values affect analysis--issues that we must all learn to deal with in our increasingly diverse societies.

The term "second-generation diversity issues"(7) is currently in vogue but means different things to different people. To some extent, the traditional outsiders- women and minority men--have been permitted to enter existing systems, including the legal system. …