GW Law Faculty Publications & Other Works

Document Type

Book Part

Publication Date

2003

Status

Accepted

Abstract

This book examines the influence of masculinity, heterosexuality, and race norms on the reasonableness requirement in two criminal law defenses: the doctrine of provocation and the defense of self-defense. I argue that certain defendants are better able than others to bolster their claims of reasonableness by relying on dominant social norms and illustrate this point by examining three types of cases: (1) female infidelity killings, (2) gay panic killings, and (3) racialized self-defense cases (both private claims of self-defense and police use of deadly force against persons of color). Even though these three types of cases may seem completely unconnected at first glance, they are linked by the defendant's reliance on social norms to bolster his (or her) claim of reasonableness.

I offer three proposals for reform. My first proposal is theoretical - rather than relying on a positivist conception of reasonableness (or one that focuses on what the average or typical person would have believed or done), I suggest we ought to also utilize a normative conception of reasonableness (or one that focuses on what actions ought to be considered reasonable). To implement this normative conception of reasonableness, I offer a practical reform: a race-switching (or gender-switching or sexual orientation-switching) jury instruction. Upon a motion by the prosecutor or defense attorney or if the judge sua sponte thinks it appropriate, the judge would instruct jurors that they may switch the races (or genders or sexual orientation) of the defendant and victim and determine whether they would come to a different result after switching. If so, then jurors may wish to reconsider the case with the knowledge that they may have been relying upon racial stereotypes (or masculinity or heterosexuality norms) the first time around. Finally, I offer a doctrinal reform that raises the bar for all defendants claiming provocation or self-defense which is really just a clarification of existing law in the case of self-defense. In contrast to the current focus on reasonableness of beliefs and emotions, this reform (which I call the Act-Belief Distinction) would require the jury to find that both the defendant's beliefs (or emotions) and his or her acts were reasonable.

GW Paper Series

GW Legal Studies Research Paper No. 62, GW Law School Public Law Research Paper No. 62

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