Posted by Carolyn Ramsey (guest-blogging):
No License to Kill for Men:
http://volokh.com/archives/archive_2006_11_12-2006_11_18.shtml#1163559069
The provocation doctrine did not give men carte blanche to kill
intimate partners who were unfaithful or who sought to leave the
relationship. It did not even offer a successful means of mitigating a
murder charge to manslaughter for many male defendants. Today�s post
provides an excerpt from, �Intimate Homicide: Gender and Crime
Control, 1880-1920,� 77 Univ. Colo. L. Rev. 101 (2006), that captures
my argument about the comparatively stern treatment of men charged
with murdering female intimates in the late 1800s and early 1900s.
Whereas women charged with murder were treated leniently, men
risked not only receiving a guilty verdict, but also being
sentenced to substantial prison terms or even executed. The
common-law provocation doctrine mitigated the punishment of male
defendants whose deadly behavior fell within its narrow parameters,
but as both a doctrinal and a cultural matter, it offered a smaller
safety net than is often assumed . . .
The condemnation of men�s homicidal attacks on their families or
lovers [in the late nineteenth and early twentieth centuries] has
no parallel in the current American death-penalty regime. Indeed,
whereas the miniscule number of women executed between 1880 and
1920 fits into a broader historical pattern of leniency toward
female criminals, the willingness of courts and juries in the late
1800s and early 1900s to convict men of first-degree murder for
slaying intimates contrasts starkly with the small fraction of
death-sentenced men who committed intimate homicides in the late
twentieth century.
Moreover, the pattern of holding men accountable for intimate
murder crossed geographical and cultural boundaries. It is evident
in the eastern and the western United States from 1880 to 1920.
Like their New York City counterparts, Denver prosecutors typically
pressed severe charges against men who killed intimates during this
time period. Out of my sample of forty-eight cases involving male
defendants, the Denver District Attorney�s office charged forty-six
men with some kind of murder . . . About sixty percent of [these]
male murder defendants in my Denver sample were convicted and
punished for committing murder in either the first or the second
degree. Voluntary manslaughter verdicts constituted a comparatively
rare outcome for men in the Denver cases, whereas first-degree
murder convictions were the most common type of case disposition.
. . . Whereas other feminist scholars have criticized the
heat-of-passion doctrine for treating intimate killings less
severely than a fatal assault by a stranger, my research on the
west and the northeast offers little reason to think that juries in
those regions tilted the facts in favor of male defendants charged
with killing women, or that courts construed provocation categories
broadly to overturn men�s convictions. In contrast to some southern
states that �expanded the notion of provocation to cover a broad
range of sexual effrontery� [quoting Martha Umphrey], Colorado and
New York policed male violence by refusing to depart from
common-law categories.
. . . Trial judges in Colorado and New York often refused to
instruct on provocation because the evidence showed cooling time or
other factors precluding the defense as a matter of law. Appellate
courts usually affirmed murder convictions in such cases,
commenting on the poor fit between the facts and the elements of
voluntary manslaughter.
Whereas reformist jurisdictions in the late twentieth century
jettisoned provocation categories and cooling-time limitations,
courts and juries in the 1800s and early 1900s were willing to
execute male defendants who claimed that simmering jealousy, anger,
or fear led them to commit homicide. This severity was not gender
neutral. Rather, verdicts exonerating women due to their victims�
past violence or romantic inconstancy contrasted with the lack of
empathy for similar stories when a man was on trial. Moreover, in
distinction to capital sentencing in the post-Furman era, the pain
arising from romantic or family strife was generally not considered
a mitigating factor that precluded the death penalty in men�s
cases.
Unlike modern jurisdictions, including New York, that use the EED
[extreme emotional disturbance] doctrine, judges in the late
nineteenth and early twentieth centuries refused to recognize an
attempt by a wife or girlfriend to leave a man as legally adequate
provocation. For example, in People v. Youngs [45 N.E. 460 (N.Y.
1896)], the murder victim separated from her husband and threatened
to seek a divorce when she learned that he had given her �a private
disease.� He then went to a neighboring house where she and the
children were staying and fatally shot her. Affirming the capital
conviction, the New York Court of Appeals noted in dicta that the
facts showed �the absence of all . . . provocation . . . for the
commission of the crime.�
. . . Legal doctrine and gender norms [also] negated �simmering
emotions� defenses raised by men in a variety of factual scenarios,
including infidelity. Mere suspicion of adultery -- especially
suspicion that grew over a long period of time -- was rarely
recognized as an adequate basis for a heat-of-passion argument when
a man killed his spouse. Thus, in both New York and Colorado, male
defendants enraged by suspected infidelity often raised insanity,
alibi, or accidental death defenses. Those who did request
provocation instructions were frequently thwarted by adverse
rulings from the bench.
For example, the Colorado Supreme Court affirmed a refusal to
instruct on provocation where the defendant had �suspicion, or even
knowledge of prior acts of adultery,� but had not witnessed his
estranged wife having sex with another man [quoting Garcia v.
People, 171 P. 754, 755 (Colo. 1918)]. New York courts proved
almost as rigorous. The case law suggests that a homicide following
immediately upon an oral report of infidelity might receive
mitigation in New York, but that any lapse of time prevented the
defendant from raising a heat-of-passion defense.
As I demonstrate in my University of Colorado Law Review article, "Men
who stalked their victims often sought to claim temporary insanity [or
alcoholic insanity] to make an end run around the cooling-time
doctrine. Yet unlike [women], male defendants could not successfully
equate rage with temporary insanity.� Nor were they exculpated when
defense attorneys �put on expert witnesses to describe a condition
known as delirium tremens, in which the suffer manifests trembling and
delusions due to prolonged alcohol abuse."
In addition to presenting empirical data on case outcomes, my article
links the harsh attitude of jurors and other legal actors toward men
who perpetrated intimate murders with a wide array of cultural forms,
including judicial opinions, family conduct manuals, and the public
image-creation of political leaders like Theodore Roosevelt. All of
these influences associated manliness with protection of the female
sex:
In the mid-nineteenth century, influential social values,
especially among the middle class, associated manliness with
sobriety, industry, and control over the passions. These ideals of
male self-restraint came under attack toward the end of the
nineteenth century, when American men increasingly were urged to
embrace their animal instincts in sports, sex, and battle.
Nevertheless, at least up to 1920, the model white man remained
protective of women and displayed reverence for their presumptively
greater moral purity. He used his aggressive impulses to conquer
beasts, other races, and even white male rivals, but he did not use
violence against females.
Men who transgressed these prescriptive ideals did not make
sympathetic victims when their violent behavior provoked women into
lethal responses, nor did they make sympathetic defendants, when their
efforts to exert power and control resulted in the violent death of
their female intimates.
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