Posted by Carolyn Ramsey (guest-blogging):
Jury Sympathy for Abused Women Who Killed:
http://volokh.com/archives/archive_2006_11_12-2006_11_18.shtml#1163478869
This post continues the description of my intimate homicide research,
which I recently published in �Intimate Homicide: Gender and Crime
Control, 1880-1920,� 77 Univ. Colo. L. Rev. 101 (2006) and �Public
Responses to Intimate Violence: A Glance at the Past,� 121 Public
Health Reports 460 (2006). Today, I�ll focus on the comparatively
lenient treatment that the criminal justice system, and particularly
juries, accorded women charged with killing their intimates in the
late nineteenth and early twentieth centuries. As I explain in my
University of Colorado article, my work �goes beyond a simple
explanation of the salient disparities in terms of chivalry or
paternalism toward female offenders. Instead, it contends that
verdicts in intimate murder cases in the late 1800s and early 1900s
not only policed ideals of civilized masculinity [by condemning the
male decedent�s brutality toward women], but often tacitly recognized
a factor similar to the one emphasized by domestic violence
researchers today -- past abuse that might lead a woman to kill her
loved ones.�
Throughout history, men have committed homicide more often than women
have. But women sometimes killed their intimates, and when they did,
two outcomes were prevalent: acquittal or conviction for a less
serious offense than murder. For example, only one woman in fifteen
was convicted of the capital charge of first-degree murder during a
fourteen-year period in late nineteenth-century New York City. Eight
of the fifteen were acquitted; four pled guilty or were convicted of
the lesser offense of manslaughter; one was found guilty of
second-degree murder, which did not carry the death penalty; and one
died in prison before trial.
My Colorado sources yielded similar data. For instance, in Denver
between 1880 and 1920, fourteen out of twenty-seven intimate homicide
cases involving female defendants resulted in acquittals; six women
were convicted of manslaughter; two cases were nol prossed; and
another three resulted either in court-ordered dismissals, the refusal
of the grand jury to indict, or the discretionary decision of the
prosecutor not to press charges. Only one woman was convicted of
second-degree murder, and one was convicted of the first-degree crime.
No female defendants were executed in Colorado during the entire forty
year period.
As I explain in my public health essay, which provides a succinct
summary of the more colorful and detailed Colorado piece:
Juries seem to have based acquittals either on the insanity defense
or on a self-defense theory that looked to past abuse, rather than
simply focusing on the specific incident during which the homicide
occurred. [Thus, in many cases, the assessment of a female
defendant�s guilt or innocence depended on an expanded context or
time frame around the killing that helped to reveal the causes of
her homicidal fear or rage.]
Self-defense theories often succeeded when the homicide victim was
an adult man. In New York in 1891, for example, Ella Nelson was
exculpated for killing her philandering lover when he threatened
her with a pistol. A jury in the same city exonerated Maria
Barbieri at her second trial after an appellate court ruled that
evidence of her seduction, rape, and abandonment by the deceased
were relevant to understanding why she slashed his throat in a
saloon. More than a thousand miles away, a Colorado jury acquitted
a domestic servant who fatally shot her abusive employer -- a man
with whom she also had a sexual relationship.
By contrast, the ideal of the nurturing mother made insanity claims
the only route to acquittal for women who intentionally killed
their children. For instance, in 1890, Wilhelmine Lebkuchner was
found not guilty by reason of insanity after she killed her small
sons by putting rat poison in their tea. Lebkuchner resumed work as
a laundress following her acquittal, rather than being
institutionalized.
The degree of moral denunciation directed at the men who allegedly
drove these female defendants to kill constitutes the most
remarkable aspect of the cases. Even child-murderers often
contended that they had been rendered insane by maltreatment at the
hands of a husband or male relative. For instance, Lebkuchner
alleged that her brother-in-law disowned her after her husband�s
death, leaving her destitute and terrified that she would lose
custody of her children. At least until 1920, when females gained a
constitutional right to vote, the ideal man �remained protective of
women and displayed reverence for their presumptively greater moral
purity.� A man who beat, raped, or abandoned a woman failed in his
duty to protect the so-called weaker sex; his actions thus
justified or at least excused the woman�s homicidal response.
Female defendants who defied gender norms by drinking or engaging
in illicit sex could expect harsher verdicts than those who played
more traditional roles. However, when juries found such deviant
women guilty of any criminal homicide, they typically convicted
them of milder, non-capital offenses. Female defendants� testimony
about being brutally abused by their alleged victims
counterbalanced their violation of Victorian prescriptions for
proper feminine behavior. Juries thus spared them from long prison
sentences or the death penalty.
The revised narrative presented here suggests the need to rethink some
standard assumptions underpinning feminist approaches to the criminal
law. However, I do not mean to paint an overly glowing picture of
women�s treatment in the past, nor do I seek to minimize the problem
of domestic violence or the shortcomings of the state�s response to
it. In my University of Colorado Law Review article, I strive to
present a nuanced view of a society that treated male defendants
rigorously, but often gave abused women more credit for their stories
of suffering than juries, police, and other agents of the state have
done in more recent times. Yet, I also recognize that such leniency
toward women came at a cost, for it was paired with a paternalistic
view of their entire sex. As I conclude in the Colorado piece:
The recognition of long time frames leading to homicide had the
positive potential to justify a woman�s choice of violence as a
last resort in a relationship that put her life at risk.
Nevertheless, the strategy still embodied a subordinating attitude
toward women. Exculpating traumas included not only physical blows
and death threats, which legitimately might lead to a defensive
killing, but also broken engagements and other emotional harms
that, in my view, responsible adults must learn to bear. The urge
to protect female honor from the dalliances of rakish men may have
harmonized with the claims of a husband who killed his adulterous
wife; both recognized nineteenth-century concerns with reputation,
property, and sexual exclusivity. Yet, the acquittal of women whose
anger at romantic rejection reached the boiling point or whose past
suffering or even alcoholism allegedly resulted in insanity often
went beyond the bounds of traditional exculpating or mitigating
doctrines, as they were applied to men.
Tomorrow, I�ll continue my discussion by turning to male defendants�
cases. I welcome questions and comments.
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