After the reasonable Man: Getting over the subjectivity/objectivity question

New Criminal Law Review

Volumn 11, Issue 1, 2008, Pages 33-50

  Nourse, Victoria ^a,b  

^a UNIVERSITY OF WISCONSIN   (United States)

^b EMORY UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 43549087614     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2008.11.1.33     Document Type: Conference Paper

References (47)

1. Cynthia Lee, Murder and the Reasonable Man (2003)
2. George P. Fletcher, The Right and the Reasonable, 98 Harv. L. Rev. 949 (1985).
3. John Kaplan et al., Criminal Law: Cases and Materials 630-48 (3d ed. 1996)
4. Sanford H. Kadish et al., Criminal Law and Its Processes: Cases and Materials 801-26 (6th ed. 1995).
5. See Heuristics and the Law (Gigerenzer & Engel eds., 2006).
6. Kenneth W. Simons, The Logic of Egalitarian Norms, 80 B.U. L. Rev. 693 (2000).
7. V.F. Nourse, Self-Defense and Subjectivity, 68 U. Chi. L. Rev. 1235, 1236 (2001).
8. See Director of Public Prosecutions v. Camplin, 2 All E.R. 168 (1978) (fifteen-year-old boy who had been raped raising question whether he should be held to a standard of a reasonable person of his age); State v. Wanrow, 559 P.2d 548 (Wa. 1977) (jury instruction on reasonable man rejected on ground that it was sex discrimination); People v. Wu, 286 Cal. Rptr. 868, 884 (Cal. App. 1991) (reversed, in part, for failure to give instruction on Asian culture relevant in part to reasonableness of provocation) (opinion ordered depublished).
9. See, e.g., State v. Bellino, 625 A.2d 1381, 1384 (Conn. App. 1993) ("It is settled that a jury's evaluation of a claim of self-defense has both subjective and objective elements."). As Holly Maguigan notes, appellate courts sometimes obscure this dualism by using misleading terms for their own standards, using the term "subjective," for example, to describe a standard that is both subjective and objective, or using the term "objective" to describe a similar standard. Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379, 410 (1991) (explaining that a majority of states use a combined standard).
10. Model Penal Code §2.202 (2)(c)-(d) (Proposed Official Draft 1962) (defining recklessly and negligently with reference to the "actor's situation").
11. Pierre Bourdieu, The Logic of Practice 25 (Richard Nice trans., 1990).
12. Gerg Gigerenzer, Heuristics, in Heuristics and the Law, supra note 3, at 17, 24-28 (coronary care example).
13. These institutional aims appear to conflict; like a supply and demand curve, we are seeking what amounts to an equilibrium of intersecting concerns. This is what I would call a "productive contradiction" since it is demanded by the context, the ecological rationality of the situation.
14. On the difference between flat and structured reasoning, see Fletcher, supra note 1.
15. See Jane Maslow Cohen, Regimes of Private Tyranny: What Do They Mean to Morality and for the Criminal Law? 57 U. Pitt. L. Rev. 757 (1996). The court explained the facts as follows: The defendant testified that ... [h]is physical abuse of her consisted of frequent assaults that included slapping, punching and kicking her, striking her with various objects, and throwing glasses, beer bottles and other objects at her.... [O]ther specific incidents of abuse [included] her husband putting her cigarettes out on her, throwing hot coffee on her, breaking glass against her face and crushing food on her face.... The defendant's evidence also tended to show ... that her husband did not work and forced her to make money by prostitution, and that he made humor of that fact to family and friends. He would beat her if she resisted going out to prostitute herself or if he was unsatisfied with the amounts of money she made. He routinely called the defendant "dog," "bitch" and "whore," and on a few occasions made her eat pet food out of the pets' bowls and bark like a dog. He often made her sleep on the floor. At times, he deprived her of food and refused to let her get food for the family. During those years of abuse, the defendants' husband threatened numerous times to kill her and to maim her in various ways.
16. State v. Norman, 378 S.E.2d 8, 10 (N.C. 1989).
17. Id. at 9.
18. People v. Goetz, 497 N.E.2d 41 (N.Y. 1986)
19. see George Fletcher, A Crime of Self-Defense: Berhnard Goetz and the Law on Trial (1990).
20. For frequent comparisons, see Ronald N. Boyce et al., Criminal Law and Procedure 940-54 (1999)
21. Kaplan et al., supra note 2, at 609-36
22. Phillip E. Johnson et al., Criminal Law: Cases, Materials, and Text 379-88 (1995).
23. Goetz, 497 N.E. 2d at 43.
24. Id. at 44.
25. See, e.g., George P. Fletcher, Rethinking Criminal Law §4.2.1, at 247 (1978).
26. Glanville Williams, Provocation and the Reasonable Man, 1954 Crim. L. Rev. 740, 742.
27. Past threats and violence, including the victim's character for violence, have been considered highly relevant to a claim of self-defense on questions of imminence and aggression and the nature of the threat. Allison v. United States, 160 U.S. 203, 215 (1895) (prior threats relevant to "whether defendant had reasonable cause to apprehend an attack fatal to life, or fraught with great bodily injury ... [The threats] were [also] relevant because indicating cause for apprehension of danger and reason for promptness to repel attack."); People v. Thomson, 28 P. 589, 590 (Cal. 1891) ("[A]ll the acts and conduct of the deceased, either in the nature of overt acts of hostility, or threats communicated or uncommunicated, were proper evidence to be considered by the jury as shedding light ... upon the issue as to whether the deceased or the defendant was the aggressor.... These principles are elementary in criminal law, and a citation of authorities not demanded.").
28. See Victoria Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331 (1997).
29. Commonwealth v. Watson, 431 A.2d 949, 951 (Pa. 1981)
30. see id. (relating eyewitness testimony that the victim had the defendant "around the neck" and was "on top of her" when she shot). The appellate court emphasized the centrality of imminence to the trial court's reasoning and to the case: "The central issue in this case stems from the trial court's finding that appellant's belief that she was in imminent danger of death or great bodily harm at the time of the shooting was unreasonable." Watson is a classic case in which imminence takes on the meaning of "alternatives," as the court appears to have based its conclusion on the notion that she could have "avoided" the situation by leaving the relationship, rather than the notion that there was a space of time between the threat and the killing.
31. Many courts have acknowledged that, even if the law of retreat does not apply, the question of "leaving the relationship" has had extraordinary influence in cases involving battered women. See, e.g., Smith v. State, 486 S.E.2d 819, 822 (Ga. 1997) (expert testimony needed to explain why the defendant "would not leave her mate")
32. State v. Koss, 551 N.E.2d 970, 973 (Ohio 1990) (assuming ordinary person's "perception that a woman in a battering relationship is free to leave at any time")
33. State v. Kelly, 478 A.2d 364, 377 (N.J. 1984) (noting a "crucial issue of fact" was "why, given such allegedly severe and constant beatings, combined with threats to kill, defendant had not long ago left decedent").
34. Watson, 431 A.2d at 951.
35. At common law, Goetz's claims of prior violence would be irrelevant because they were generalized claims of fear based on the acts of others, not the acts of the victims. See, e.g., State v. Hampton, 558 N.W.2d 884 (Wis. Ct. App. 1996) (defendant's "psycho-social" history of past violence towards him not admissible except in cases where past violence involved victim).
36. Nourse, supra note 6.
37. The importance of battered woman syndrome testimony has always been to try to correct this problem (indeed, under this view, battered woman syndrome testimony, viewed as a set of norms rather than psychological facts, may actually be required by the equal protection clause). For a more extended argument about the "legal" nature of the syndrome, see Nourse, supra note 6.
38. See, e.g., Ball v. State, 14 S.W. 1012, 1013 (Tex. Ct. App. 1890) ("Defendant's presence at the place where the killing occurred could not, under the circumstances, constitute provocation to the deceased."); State v. Bristol, 84 P.2d 757, 766 (Wyo. 1938) (holding that the defendant had no duty to avoid entering a bar where he knew his adversary, who had threatened to attack him, to be drinking).
39. Richard A. Rosen, On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. Rev. 371, 396 (1993).
40. On the day before the killing, "sheriff's deputies were called to the Norman residence, and the defendant complained that her husband had been beating her all day and she could not take it anymore. The defendant was advised to file a complaint, but she said she was afraid her husband would kill her if she had him arrested. The deputies told her they needed a warrant before they could arrest her husband, and they left the scene. The deputies were called back less than an hour later after the defendant had taken a bottle of pills. The defendant's husband cursed her and called her names as she was attended by paramedics, and he told them to let her die. [Then the officers] chased him back into his house...." State v. Norman, 378 S.E.2d 8, 10 (N.C. 1989).
41. Lest this seem extreme, one must remember that there is a long history of political theory that lived into the twentieth century in which a woman was not entitled to vote precisely because her husband was her "governor." Indeed, the family can, in a strange way, be seen as the font of political theory in America. John Locke wrote his great treatises against Filmer's claim that the family was the model for the legitimacy of monarchy. Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (1996).
42. To the extent my position here seems inconsistent it reflects the different nature of the institutions at stake. Juries may be aided by the reasonable person as a heuristic, while scholars may not. The scholarly institution aims toward the questioning of intellectual routine, something that would be enhanced by moving beyond the quick resort to the "objective" and "subjective."
43. The use of violence is in fact a marker of gender; women's identity is socially wrapped up in their role in relation, as caretakers, mothers, wives.
44. The truth is that a subjective component of self-defense is quite old; it can be found in a variety of nineteenth-century cases; it can be found there because social contexts - new settlement of the region, widespread violence, and the O.K. Corral - appeared to require it. A move to the pocket, a step toward a gun were "signals" of violence in a violent world, just as the same can be the case in a violent home. See Nourse, supra note 6.
45. The difference between these queries, one will notice, is that in the first the situation is defined as an intimate relationship.
46. See, e.g., James Q. Wilson, Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? (1997)
47. Alan Dershowitz, The Abuse Excuse and Other Cop-Outs, Sob Stories, and Evasions of Responsibility (1994).