Provoking Change: Comparative Insights on Feminist Homicide Law Reform
Ramsey, Carolyn B., Journal of Criminal Law and Criminology
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 late (1)--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 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 excuses (6) for murder that enforce pernicious gender-based stereotypes and that fail to hold men or women to a high standard of responsibility. In place of the current excuse-based regime of mitigation, legislatures ought to reintroduce the concept of justified emotion, grounded not only in contemporary social norms but also in equality principles. This Article uses history, as well as legal analysis, to assess the Australian homicide law reforms with a focus on those in Victoria. It also advocates changes in the United States, including the abolition of the extreme mental or emotional disturbance (EMED) defense (7) and the restriction and reconceptualization of the provocation doctrine, which mitigates murder to manslaughter when the defendant claims he acted in the heat of passion.
Reformers in Victoria posited a substantive gender equality rationale for abolishing the provocation defense based on the predominance of men among perpetrators of intimate-partner homicide and the fact that men and women kill in very different contexts. (8) Substantive equality theories ask whether facially neutral rules have unequal effects. (9) Thus, while defendants of both sexes can claim provocation, the defense is biased if it disproportionately benefits men, entrenches sexist stereotypes, or fails to recognize women's experiences. Although female defendants can successfully claim the provocation defense (indeed, they may be more successful raising this claim than men are), (10) it does not fit the social situation in which most women kill. …