law, a defendant who kills “in the heat of pas- sion” is only guilty of manslaughter, not murder. The classic common law voluntary manslaughter would involve a man who discovers his wife in an act of adultery. He then kills her or her lover. Although the killing is intentional, the man is only guilty of voluntary manslaughter, not mur- der.
The classic explanations for this doctrine are that it recognizes the “frailties of human na- ture,” (i.e., men are hotheads) and that the killing was partially justified by the lover’s encroach- ment on the defendant’s marriage. Not surpris- ingly, it is a doctrine that has been used much more frequently by men than women. In fact, many feminists have called for the abolition of the doctrine. Would women have carved an exception to the murder laws for hot-headed husbands? Likely not. The doctrine was created when men dominated the legal system. Women may be labeled as emotional, but even those women who kill abusive husbands, find themselves unaided by the traditional doctrine. Instead of just claim- ing they acted in “the heat of passion,” they must often demonstrate that as a result of their abuse, they suffered from a syndrome that lessened their culpability for the crime.
For men, no syndrome is necessary. It is enough if they acted like a red-blooded, jealous, American husband.
Rape and Sexual Assault
One of the traditionally chauvinistic areas of law has been defendant is not guilty of rape unless he knowingly forced a woman (not his wife) to have sexual intercourse against her will by threat of force or violence and, in some jurisdictions, she resisted his efforts. Thus, contrary to many persons’ beliefs, the definition of rape was never “sexual intercourse without consent.” Rather, in order to protect men from unfounded accusations, rape law traditionally required that the women’s accusations be accompanied by evidence of forc- ible assault. Sadly, many women who have been the victims of sexual assault know that nonconsensual sex can occur in a variety of ways. There need not be a gun or knife at a woman’s throat for sex to be nonconsensual.
43
Some are frozen with fear, others feel helpless given their overall circumstances. The traditional definition of rape viewed the crime from the perspective of men, not that of the women who are the ordinary victims of such a crime.
Proof that women might
“Given the historical role of women as caregivers, it seems unlikely that criminal law would favor autonomy over the safety of an- other person.”
have written this area of law differently comes from recent revisions of the law by het- erogeneous legislatures that have done just that. When women’s voices were finally heard, there were many pro- posals to change the tradi- tional rape law. Some of these reforms have included elimi- nating the resistance require- ment, making spousal rape a separate crime, enacting rape shield laws, and requir- ing a defendant’s claim that he mistakenly believed the
woman consented to be both honest and reasonable.
Changing Times While there are many more examples, let’s con-
sider one other situation where it has concretely made a difference to have women involved in the law-mak- ing process. This has occurred in the arena of interna- tional law. Until relatively recently, women have been considered the “booty” of war. Rape was not a war crime and international tribunals did not seek to rectify the horrors that have been committed against women. Whether it be systematic rape for genocidal pur-
poses (as occurred in the rape camps of Yugoslavia) or the campaign of rape in Rwanda and Darfur, women were considered fair game under the laws of war. But, that too is changing. And, it took a woman in a deci- sionmaking position to make the change. It wasn’t until Judge Florence Mumbia of Nambia proclaimed that war was a rape crime was it recognized under international law. Judge Mumba shattered the gender barrier for in- ternational war crimes by proclaiming rape is an “instru- ment of terror” and that “[i]n time of has in time of war, men of substance do not abuse women.’
To promote stability, there is a certain inertia built
into the law. Our legal system, although now statutorily- based, has its origin in the common law which was the sole province of men.
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68