Resignifications and subversive transformations: Judith Butler's queer theory and women who kill

Liverpool Law Review

Volumn 27, Issue 3, 2006, Pages 303-335

  Carline, Anna ^a  

^a LIVERPOOL JOHN MOORES UNIVERSITY   (United Kingdom)

Author keywords

Battered woman syndrome; Homicide; Judith Butler; Queer theory; Resignification; Subversive transformation

Indexed keywords

EID: 33847780626     PISSN: 0144932X     EISSN: 15728625     Source Type: Journal    
DOI: 10.1007/s10991-006-9005-y     Document Type: Review

References (140)

1. In particular the work of Butler in: J. Butler, Gender Trouble and the Subversion of Identity 2ed (London: Routledge, 1999);
2. J. Butler, Bodies that Matter: On the Discursive Limits of Sex (London: Routledge, 1993);
3. J. Butler, The Psychic Life of Power: Theories in Subjection (California: Stanford University Press, 1997).
4. Murder is a common law offence and was defined by Coke as the "Unlawful killing of any reasonable creature in rerum natural under the [Queen's] peace, with malice aforethought." Coke, 3 Inst. 47.
5. [1971] AC 814 Privy Council p. 831.
6. Beckford v R [1988] AC 130.
7. R v Williams (Gladstone) [1987] 3 All ER 411.
8. See: S3 Homicide Act 1957 and Devlin J in R v Duffy [1949] 1 All ER 932.
9. See for example: D. Nicolson, and R. Sanghvi, "Battered Women and Provocation: The Implications of Ahluwalia", Crim L R (1993), pp. 728-738;
10. A. Young, "Conjugal Homicide and Legal Violence: A Comparative Analysis", Osgood Hall L J 31 (1991), pp. 761-808.
11. A. McColgan, "In Defence of Battered Women who Kill", Oxford Journal of Legal Studies 13 (1993), pp. 508-529;
12. K. O'Donovan, "Defences for Battered Women who Kill", Journal of Law and Soc 18 (1991), pp. 219-237.
13. The main quandary has focused on which, if any, particular characteristics of the defendant should be attributed to the reasonable person when assessing the level of self-control society expects. Lord Diplock in DPP v Camplin [1978] 2 All ER 168 stated that whereas the reasonable person was assumed to share the same age and sex as the accused any other individual characteristics would only affect the gravity of the provocation.
14. Recently, however, the House of Lords in R v Smith [2000] 3 WLR 654 held that any of the accused's characteristics could be allowed to reduce the level of self-control, arguably eroding the objective strand of the defence. The Law Commission has, nonetheless, proposed a return to a more Camplin based test, which questions whether: "... a person of the defendant's age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or similar way."
15. The Law Commission, Partial Defences to Murder (Law Com No. 290) (London: HMSO, 2004), p. 5. Interestingly, this formulation does not refer to gender, thus imposing a gender neutral test. The proposals continue to state, however, that the court should take into account all the circumstances of the defendant, unless they are only relevant to the defendant's capacity for self-control. This appears to require a link between the provocative conduct and the characteristic(s) of the defendant in order for the court to be able to take them into account. Such an approach is similar to that which existed prior to the House of Lords in R v Smith.
16. However, it is important to note that the whole law of homicide is currently under review, see the Law Commission A New Homicide Act for England and Wales? A Consultation Paper (Law Commission, Consultation Paper No. 177) (London: HMSO, 2005).
17. R v Humphreys [1995] 4 All ER 1008.
18. L. Walker, The Battered Woman (New York, Harper Row: 1979).
19. Supra, n. 8, McColgan.
20. An abnormality of mind was defined by Lord Parker CJ in R v Byrne [1960] 2 QB 396 as: "... a state of mind so different from that of ordinary human being that the reasonable man would define it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment." at 403.
21. R v Hobson [1998] 1 Cr App R 31.
22. Supra, n. 11.
23. Ibid., p. 398.
24. See for example: Lavallee v R [1990] 1 SCR 852.
25. See for example: E. Schneider, "Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering", Women's Rights Law Reporter 9 (1986), pp. 195-222.
26. See for example: supra, n. 7, Nicholson and Sanghvi, p 734;
27. K. O'Donovan, "Law's Knowledge: The Judge, The Expert, The Battered Woman, and Her Syndrome", Journal of Law and Soc 20 (1993), pp. 427-436;
28. supra, n. 18;
29. E.A. Sheehy, J. Stubbs, and J. Tolmie, "Defending the Battered Woman on Trials: The Battered Woman Syndrome and its Limitations", Crim Law J 16 (1992), pp. 369-394.
30. See for example: supra, n. 19, E.A. Sheehy, J. Stubbs, and J. Tolmie.
31. Butler has recently recognised that resignification, in itself, does not always led to a subversive transformation of the existing gender scripts and social power. In Undoing Gender she argues that resignification needs to be contextualised within the framework of radical democratic theory and thus the question is whether the resignification leads to a "... less violent ... more inclusive population."
32. J. Butler, Undoing Gender (London; Routledge; 2004), p. 225.Within this article the resignifications and subversive transformations are considered to be part of the inevitable workings of social power and the law, as opposed to the conscious decisions of the female defendants to challenge the existing gender scripts.
33. The writer strongly emphasises the importance of pressure groups, such as Justice for Women (www.jfw.org.uk, accessed 15 June 2006)
34. and Southall Black Sisters (www.southallblacksisters.org.uk, accessed 15 June 2006), whom have campaigned on behalf of women who have killed their abusive partners. Such groups are undoubtedly fundamental to promoting and encouraging social transformation and resignification, unfortunately, however, an analysis of the roles of pressure groups is beyond the scope of this article.
35. Supra, n. 1, Butler, Gender Trouble, p. 33.
36. See also J. Hood-Williams, and W. Cealey Harrison "Trouble with Gender", The Sociological Review 46(1) (1998), pp. 73-94.
37. Supra, n. 1, Butler, Bodies that Matter, p. 107.
38. Supra, n. 1, Butler, Gender Trouble."The cultural matrix through which gender identity has become intelligible requires that certain kinds of 'identities' cannot 'exist' - that is, those in which gender does not follow from sex and those in which the practices of desire does not 'follow' from either sex of gender." pp. 23-24.
39. See for example: A. Carline, "Zoora Shah: An 'Unusual Woman'", Social Legal Studies 14(2) (2005), pp. 215-238;
40. D.E Chunn, and D. Lacombe, Law as a Gendering Practice (Oxford: Oxford University Press, 2000);
41. A. Cossins, "Saints, Sluts and Sexual Assault: Rethinking the Relationship Between Sex, Race and Gender", Social Legal Studies 12(1) (2003), pp. 77-103;
42. B. Cossman, "Gender Performance, Sexual Subjects and International Law", Canadian Journal of Law and Jurisprudence 15 (2002), pp. 281-296;
43. K. Daly, "Different Ways of Conceptualizing Sex/Gender in Feminist Theory and their implications for Criminology", Theoretical Criminology 1(1) (1997), pp. 25-51;
44. E. Loizidou, "The Trouble with Rape", Feminist Legal Studies (1999), pp. 275-297;
45. C. Smart, Feminism and the Power of the Law (New York: Routledge, 1989).
46. J. Conaghan, "Reassessing the Feminist Project in Law" Journal of Law Society 27(3) (2000), pp. 251-385, p. 361.
47. M. Gatens, Imaginary Bodies: Ethics, Power and Corporeality (New York: Routledge, 1996).
48. Supra, n. 1, Butler, Gender Trouble, pp. 43-44.
49. N. Naffine, "The Body Bay" in N. Naffine, and R.J. Owens, ed Sexing the Subject of Law (London: Sweet Maxwell, 1997), pp. 79-93, p. 8.
50. See for example R. Collier, "After Dublane: Crime, Corporeality, and the (Hetero)sexing of the Bodies of Men", Journal of Law and Society 24 (1997), pp. 177-198;
51. N. Naffine, and R.J. Owens, ed Sexing the Subject of Law (London: Sweet Maxwell, 1997);
52. C. Smart, "Law's Power, the Sexed Body, and Feminist Discourse", Journal of Law and Society 17 (1990), pp. 194-210.
53. Supra, n. 21, p. 41.
54. Supra, n. 1, Butler, Psychic Life of Power.
55. K. Campbell, "The Plague of the Subject: Psychoanalysis and Judith Butler's Psychic Life of Power", International Journal of Sexuality Gender Studies 6(1/2) (2001), pp. 35-48, p. 36.
56. Supra, n. 1, Butler, Psychic Life of Power, pp. 10-11.
57. Ibid., p. 86.
58. Ibid., p. 3.
59. Ibid., pp. 3-4.
60. Butler maintains that "... the entire domain of the psyche remain[s] largely unmarked in [Foucault'] theory." Ibid., p. 2.
61. Stravrakakis Y, Lacan the Political (London: Routledge, 1999), p. 18.
62. For Butler, the symbolic order can be construed as a semblage of performative speech acts which constitute the subject and "... produce the field of cultural viable sexual subjects ..." The symbolic order produces intelligible gender identities. These performative speech acts consist "... in a series of demands, taboos, sanctions, injunctions, prohibitions, impossible idealizations and threats." Supra, n. 1, Butler, Bodies that Matter, p. 106.
63. J. Butler, "Gender Trouble, Feminist Theory and Psychoanalytic Discourse" in L. Nicholson, ed Feminism/Postmodernism (Routledge: London, 1990), pp. 324-340, p. 326.
64. Supra, n. 1, Butler, Bodies that Matter, p. 95.
65. Ibid., p. 96.
66. Supra, n. 39, p. 35.
67. Supra, n. 1, Butler, Bodies that Matter, p. 105.
68. Ibid., p. 106.
69. Supra, n. 1, Butler, Psychic Life of Power, p. 97.
70. Ibid., p. 89.
71. Supra, n. 1,Butler, Bodies that Matter, p. 106.
72. Supra, n. 41, p. 332.
73. Supra, n. 1, Butler, Psychic Life of Power, p. 99.
74. J. Robinson, "Feminism and the Spaces of Transformation", Transactions of the Institute of British Geographers 25(3) (2000), pp. 285-301, p. 290.
75. Supra, n. 1, Butler, Gender Trouble, p. 82.
76. Ibid., p. 92.
77. Ibid., p. 96.
78. Supra, n. 1, Butler, Bodies that Matter, p. 108.
79. Ibid.
80. Ibid., p. 221.
81. Ibid., p. 218.
82. Ibid.
83. Ibid., p. 99.
84. Ibid., p. 93.
85. For a critical discussion of Butler's and Foucault's notion of resistance see C. Mills, "Contesting the Political: Butler and Foucault on Power and Resistance", The Journal of Political Philosophy 11(3) (2003), pp. 253-272.
86. A reverse discourse is that which may provide a resistance to the normalising discourse, but yet is produced by the normalising discourse itself. Foucault recognised the existence of reverse discourse in relation to homosexuality, noting that, whilst the dominant normalising discourses produced by psychiatry and jurisprudence, amongst other disciplines, led to the increased social control of homosexuality, it "... also made possible the formation of a 'reverse' discourse: homosexuality began to speak out on it own behalf, to demand that its legitimacy or 'naturality' be acknowledged, often in the same vocabulary, using the same categories by which it was medically disqualified." Foucault M, The History of Sexuality (London: Penguin Books Ltd., 1998), p. 101.
87. Supra, n. 1, Butler, Psychic Life of Power, p. 99. Whereas for Lacan and Althusser the unanticipated effects of a symbolic interpellation are restricted to resistance within the imaginary, for Foucault, they are part of the symbolic order itself and therefore may lead to a subversive transformation of the symbolic order.
88. Supra, n. 1, Butler, Psychic Life of Power, p. 102.
89. Ibid., p. 104.
90. The psyche can be categorised as the 'internal' life of the subject: the conscious and unconscious aspects of identity. Significantly, however, it is important to note that Butler deconstructs the internal/psyche external/social boundary, and constructs the psyche as formed by social power. See generally supra, n. 1, Butler, Psychic Life of Power.
91. Supra, n. 1, Butler, Gender Trouble, pp. 68-69.
92. Ibid., p. 78.
93. Supra, n. 1, Butler, Psychic Life of Power, p. 22.
94. Ibid., p. 181.
95. Ibid., p. 170.
96. Ibid., p. 171.
97. Ibid., p. 196.
98. Ibid., p. 198.
99. Ibid., p. 94.
100. Supra, n. 1, Butler, Bodies that Matter, p. 224.
101. C. Feinman, Women in the Criminal Justice System (New York: Praeger, 1980), p. 1.
102. F. Heidensohn, Women and Crime, 2ed (London: McMillan Press Ltd., 1996).
103. Ibid., p. 95.
104. A. Worrall, Offending Women: Female Law Breakers and the Criminal Justice System (London: Routledge, 1997), p. 60.
105. See: D. Nicholson "Telling Tales: Gender Discrimination, Gender Construction and Battered Women who Kill", Feminist Legal Studies III (1995), pp. 185-206, for a consideration of Worrall's appropriate femininity and the cases of Thornton and Ahluwalia.
106. See for example: supra, n. 25, Carline and ibid.
107. R v Ahluwalia (1993) 96 Cr. App. R. 133.
108. R v Thornton (No. 2) [1996] 2 Cr. App. R 108.
109. Supra, n. 84, p. 140.
110. Supra, n. 85, p. 116, see also p. 117.
111. R v Hobson [1998] 1 Cr. App. R. 31.
112. Ibid., p. 34.
113. R v Gardner [1994] 14 Cr. App. R (S.) 14.
114. R v Grainger [1997] 1 Cr. App. R. (S.) 369.
115. R v Howell [1998] 1 Cr. App. R. (S.) 229.
116. R v Fell [2000] 2 Cr. App. R. (S.) 464.
117. R v Stubbs [1994] 15 Cr. App. R. (S.) 57.
118. Supra, n. 90, p. 367.
119. Ibid.
120. Ibid., p. 368.
121. Ibid., p. 366.
122. Supra, n. 93, p. 466.
123. Supra, n. 90, p. 365.
124. Supra, n. 93, p. 464.
125. Supra, n. 91, p. 373.
126. Ibid., p. 372.
127. Ibid.
128. Ibid., p. 374.
129. Supra, n. 94 the court stated: "... that there was a further depressive illness due to the long suffering of physical and other abuse to which this appellant had been exposed. The doctor said that depressive illness of this kind was a known cause of aggression in one who would otherwise not have shown it." at 59.
130. The issues relating to the medicalisation of women within the criminal justice system is analysed by H. Allen Justice Unbalanced: Gender, Psychiatry and Judicial Decisions (Milton Keynes: Open University Press, 1987). Allen adopts a Foucaultian discourse analysis in order to explore the reasons behind the seemingly disproportionate use of psychiatric disposals for female offenders. However, she illustrates that, despite the continued reliance upon psychiatric disposals, the perceived 'madness' or mental illness in women tends to be constructed as normal feminine behaviour. Allen states: "... the courts tend to go on perceiving their female offenders as 'relatively normal women', and it is often their apparent conformity and competence that make them so acceptable as psychiatric patients." p. xi.
131. The issue of medicalisation, normalisation and the law is also considered by Smart, supra, n. 8;
132. A. Hunt, G. Wickham, Foucault and Law (London: Pluto Press, 1998),
133. and C. Sumner, "Foucault, Gender and the Censure of Deviance", in L. Gelsthorpe, and A. Morris, ed Feminist Perspectives in Criminology (Milton Keynes: Open University Press, 1990), ch. 3.
134. Supra, n. 1, Butler, Psychic Life of Power, p. 7.
135. Ibid., p. 191.
136. Ibid., p. 21.
137. Ibid., p. 104.
138. Significantly the Law Commission are currently reviewing the law of homicide, and have proposed three general homicide offences: first degree murder, second degree murder and manslaughter. In addition there would also be a range of specific homicide offences, for example assisted suicide. See: supra, n. 9, Law Commission A New Homicide Act for England and Wales? A Consultation Paper. Justice for Women's response to the consultation paper can be found at www.jfw.org.uk/Law_Commission_2nd_consultation_Final_Doc.doc (accessed 21 June 2006).
139. Supra, n. 21, Butler, Undoing Gender, p. 216. Lacey has also argued that the "...law's sexing of its subjects ... is understood as a continuing process whose history is susceptible to recovery and critical analysis ..." and further argues that the "... utopian moment within the critical project... points to the project of attempting to reimagine legal categories, legal worlds which either transcend or reconfigure sexual difference in less hierarchical and more heterogeneous ways."
140. N. Lacey, "On the subject of Sexing the Subject", supra, n. 30, Naffine and Owens, pp. 65-76, p. 67, 68. Thus the queer legal feminist engages in a critical genealogical process of analysing the gender scripts produced by the law with the aim of disturbing the existing scripts and exposing spaces and opportunities for resignification and subversive transformation.