“Given the historical role of women as caregivers, it seems unlikely that criminal law would favor autonomy over the safety of another person.”


He then kills her or her lover. Although the killing is intentional, the man is only guilty of volun- tary manslaughter, not murder.


The classic ex- planations for this doctrine are that it recognizes the “frailties of human nature,” (i.e., men are hotheads) and that the killing was partially justified by the lover’s encroachment on the defendant’s marriage. Not surprisingly, 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 emotion- al, but even those women who kill abusive husbands, find themselves unaided by the traditional doctrine. Instead of just claiming 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 accompa- nied by evidence of forcible assault.


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Sadly, many women who have been the vic- tims 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 non- consensual.


Some are frozen with fear, others feel helpless


given their overall circumstances. The traditional def- inition 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 have written this area


of law differently comes from recent revisions of the law by heterogeneous legislatures that have done just that. When women’s voices were finally heard, there were many proposals to change the traditional rape law. Some of these reforms have included eliminat- ing the resistance requirement, 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


purposes (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- sion making position to make the change. It wasn’t un- til Judge Florence Mumbia of Nambia proclaimed that war was a rape crime was it recognized under interna- tional law. Judge Mumba shattered the gender barrier for international war crimes by proclaiming rape is an “instrument 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 stat- utorily-based, has its origin in the common law which was the sole province of men.


One can look at many other areas of the law to see in the influence of gender on our criminal and


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