Academic journal article The American University Journal of Gender, Social Policy & the Law

Domestic Homicides: The Continuing Search for Justice

Academic journal article The American University Journal of Gender, Social Policy & the Law

Domestic Homicides: The Continuing Search for Justice

Article excerpt


Domestic homicides include killing an intimate partner1 out of jealous rage, and killing a batterer out of fear and despair. How the criminal law treats these different kinds of domestic homicides continues to challenge our sense of justice. In this Article, I first address the injustice that the partial defense of provocation for domestic homicides currently presents. I then discuss why eliminating or modifying the defense will continue to be problematic so long as mandatory sentencing persists. I next turn to the recent developments in Australian states, where experimentation in this area continues. I describe and analyze Australia's continuing debate over how the criminal law should respond to different kinds of domestic homicides. Finally, I examine the most recent sweeping change to American criminal defense law: Stand Your Ground/Castle laws such as Florida's law.2 I suggest that American lawmakers should consider enacting a modified version of a recent Australian provision by amending the modern Castle laws to provide a presumption of self-defense for domestic violence survivors who kill their batterers in their homes or vehicles.


Professor Aya Gruber provides the latest major U.S. academic contribution to this area in her 2014 article, "A Provocative Defense."3 There she (in her own words) "provocatively"4 argues that in the United States this defense, in its current form, functions fairly for all forms of domestic homicide. Gruber suggests further that I, and others who voice dissatisfaction with American criminal law's status quo on provocation, are misguided. She charges that we are using "criminal punishment to express an anti-masculinity" message5 while disregarding the negative impact that changing or abolishing the provocation defense would have on young minority men "accused of non-intimate homicides and facing murder charges in one of the most punitive systems on earth."6

I respectfully disagree with Professor Gruber's claim that provocation functions fairly and with her portrayal of many of the critics of the current form of the provocation defense. Gruber describes such criticism in purely gendered terms. She says that critics believe provocation "gives male defendants a benefit they do not deserve (mitigation) and denies female defendants a better disposition (acquittal)."7 However, my criticism of provocation, while highlighting the need for substantive equality by taking women's experiences into account,8 is based on the degree of culpability of certain homicidal conduct regardless of gender. My concern is that the parallel use of provocation for domestic killings out of jealous rage and domestic killings out of fear of continuing physical violence is unfair and immoral. The unfairness is exacerbated in jurisdictions that have enacted the Model Penal Code's more expansive and subjective Extreme Emotional Disturbance (EED) defense.9

There is a gender chasm when it comes to committing domestic homicide. Men commit many more domestic homicides than women10 and are much more likely than women to kill out of jealousy.11 Furthermore, while most male homicide victims are not killed by intimates, most female victims of homicide are killed by husbands, lovers, ex-husbands, or exlovers.12 Many of these men were batterers before they were killers.13 In contrast, most of the women who commit domestic homicides are domestic violence survivors.14

These gendered facts do not mean that it is anti-male to argue that some homicides deserve to be treated as murders while others do not, even if, in application, this means that more men than women who commit domestic homicide will be found to be murderers.15 Instead, critics such as myself assert that different reasons for killing merit different legal responses. Anyone who kills another out of possessiveness and anger, where the other threatened no serious physical violence, should be guilty of the crime of murder. …

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