[Carolyn Ramsey (guest-blogging), November 13, 2006 at 9:26am] Trackbacks
Intimate Homicide:

My work on the legal history of public responses to intimate homicide has attracted attention in part, I think, because it taps into present-minded concerns about domestic violence and the gendered politics of the criminal law. Over the next week, I will share with you my research on intimate homicide in the late nineteenth and early twentieth centuries. This research is published in my law review article, "Intimate Homicide: Gender and Crime Control, 1880-1920," 77 Univ. Colo. L. Rev. 101 (2006), and in my short essay, "Public Responses to Intimate Violence: A Glance at the Past," 121 Public Health Reports 460 (2006). In the public health essay, I introduce my thesis as follows:

"In 2004, a California jury sentenced Scott Peterson to death for killing his wife and future child. Peterson is an anomaly on death row, which is mostly occupied by men who committed serial murders, killed law enforcement officers, or caused death during other violent crimes, such as armed robbery. Yet, the outcome of his case recalls a nineteenth-century tradition of executing men for murdering their lovers, wives, and other family members. Although no adequate public response to the problem of intimate violence was achieved in the past, the criminal justice system suffered from different flaws and biases in this regard than one might expect.

Lack of attention to non-lethal intimate violence may have been 'the normal state of affairs' throughout most of American history. Prior to the 1980s, only the colonial era (especially 1640 to 1680) and the late Victorian era (especially 1870 to 1890) witnessed sustained efforts to curb wife-beating and 'unnatural severity' toward children. However, scholars have overstated the level of public apathy toward men's homicidal aggression against women. Leading criminal law casebooks, numerous law review articles, and books by influential legal scholars and historians repeat the erroneous claim that, in the past, the legal doctrines of self-defense and provocation endorsed men's brutality, whereas women were severely punished for perpetrating intimate violence.

In fact, the converse was true. Data culled from dusty criminal case files in New York and Colorado demonstrates that, in both the eastern and western United States, men accused of killing their intimates often received stern punishment, while women charged with similar crimes were treated with leniency . . .

[My] research also unearths the pre-history of the 'battered woman's syndrome defense.' In modern criminal trials, battered woman's syndrome evidence bolsters the credibility of women who killed their batterers [and supports the argument that they honestly and reasonably feared for their lives.] . . . modern approaches suggest that, when assessing the culpability of a battered woman who killed, the jury should be allowed to take her history of abuse into account. No formal battered woman's syndrome defense existed in the late 1800s and early 1900s. However, juries and courts implicitly recognized one and even extended it to women who killed to avenge infidelity or abandonment. Indeed, the paternalistic understanding of social relations prevalent in the Victorian era tended to equate physical and emotional maltreatment of women . . .

Of course, paternalistic efforts to stop male abuse of women did not go uncontested. Yet, the ineptitude of the state in curbing such abuse was attributable to the deficiency and corruption of early policing, as well as to cultural conflict over the role of violence in family government. It was not the product of a hegemonic gender ideology tolerant of extreme violence against women."

My intimate homicide research grew out of another project on the nature of the prosecutor's "public" role in the late nineteenth century. In researching this earlier article, I compiled data that indicated that prosecutors and jurors were relatively keen to send male domestic killers to the gallows, despite some squeamishness about the death penalty in general. This finding surprised me because I had always taught my criminal law students that the provocation and self-defense doctrines tolerated and perhaps actually encouraged male aggression, whereas women who committed murder could expect severe punishments. I began to wonder if this narrative, which resonated with my own feminist beliefs, obscured a more complicated and nuanced reality.

To explore that possibility, I decided to embark on a comprehensive analysis of public responses to lethal intimate violence into two distinct regions — the northeast and the frontier west. This is how I describe my sources in my University of Colorado Law Review publication:

"This article relies in part on case files preserved by New York County prosecutors, whose jurisdiction was coextensive with New York City for most of the nineteenth century. The Denver data comes from the scrapbooks of police detective Sam Howe, who kept a record of Denver homicides prior to 1921 in a special book. Most of Howe's cases can also be found in the records of the Denver and Arapahoe County District courts . . . Impeccable data on American executions compiled by M. Watt Espy and Michael Radelet facilitates discussion of capital punishment in intimate murder cases."

Although I combined my archival data with analysis of appellate opinions, my focus on previously unexplored primary sources allowed me to say something new. The origins of the mistaken view that I challenge lie in faulty methodology. A narrow focus on published appellate opinions points to a few unrepresentative cases of women who received long prison terms or the death penalty for killing their husbands. In fact, most female defendants were acquitted of murder charges because juries sympathized with their stories of abuse and abandonment. However, because acquittals and lesser-included offense convictions did not result in appeals, this information remained hidden, prior to my research. A comparison between New York and Colorado and their urban centers reveals their remarkably similar treatment of intimate homicide: "Despite vast differences in population and culture, both [states] resolved these cases in a gender-biased way that benefited female defendants."

Tomorrow, I plan to talk in detail about the criminal-justice response to the killing of abusive men by their female partners in the late nineteenth and early twentieth centuries. Wednesday, we'll take a look at the male defendants' cases, and on Thursday, I'll offer a cultural and legal comparison of the two regions on which my study is based — New York and Colorado. Finally, on Friday, I'll post some concluding thoughts, including my tentative hypotheses about why domestic violence prevention failed to occur, despite demonstrated societal revulsion toward men who killed their intimates.

PatHMV (mail) (www):
This work seems very interesting. I've long wondered about the "appellate bias" in many legal researches. Many in the legal profession act as if, if it's not in the appellate opinions, it has no relevance. While true for brief-writing work, this attitude leads, as you show so well, to some deep flaws in other types of analysis. I look forward to reading the rest of your work.

As a pardon attorney (among other things) for our last governor, I had to review a number of cases of intimate violence and help the governor decide whether to exercise the mercy of commutation or not (to reduce lengthy prison terms; there were no such death penalty cases while we were in office). Generally, our conclusion was that the juries had done a fine job sorting through conflicting testimonies.

One common thread I saw was a great difficulty in pegging either party as the "primary" aggressor. I saw several cases where both the men and the women gave as good as they got. Figuring out who started it all, or even who started particular fights, would have been beyond the capabilities of Solomon, sometimes. In one tragic case, where a late-middle-aged woman had shot her estranged late-middle-aged husband after a lengthy and tumultuous relationship, half their kids wrote us saying please let momma out, daddy was a nasty SOB to her. The other half wrote us saying please don't let momma out 'cause she'll come after us next. (By the way, they had already broken up when she broke into the house and waited for him to come home, sitting in the kitchen by the back door with a rifle. She shot him when he walked in the door, and had spent the wait writing a note to a friend in which she expressed all her frustrations and said she would probably kill him before the night was over.)

But to return to the subject of selectional bias, is it also possible that even arrest data wouldn't fully represent the prevailing societal attitude toward domestic abuse at the time? I would assume, without benefit of hard data, that in the 19th century, male relatives of the women would be more likely to render some type of punishment or deterrence upon abusive husbands. Rather than have the offender arrested for beating his wife, the husband would come home one day to find his wife moved back to her people, with her brothers and uncles there to deliver him a forceful reminder not to come bother her again. Could that have happened enough to throw off even the arrest and trial statistics upon which you reply for this excellent new research?
11.13.2006 10:48am
Hans Bader (mail):
There is massive discrimination against male victims in the domestic violence context.

According to the federal Bureau of Justice Statistics, women who commit unprovoked killings of their husbands get only 7 years in prison, whereas men who commit unprovoked killings of their wives get 17 years in prison.

And it's much, much harder for a prosecutor to get even a clearly-guilty abusive wife for killing her husband, since wives who abuse their husbands invariably claim "battered woman's syndrome" even when they dominated and abused their husbands for years.

The North Carolina and South Carolina Supreme Courts ruled a generation ago that female victims of domestic violence could sue their attackers, but male victims could not, applying the doctrine of spousal immunity to shield only victimization of husbands.

Yet many people falsely think that it's women who are subjected to sex discrimination in the domestic violence context, and that's why Congress passed the Violence Against Women Act (a small portion of which was declared unconstitutional in United States v. Morrison, 529 U.S. 598 (2000)).
11.13.2006 11:42am
Hans Bader (mail):
As I noted above, the North Carolina Supreme Court and South Carolina Supreme Court both ruled that only wives, not husbands, could sue for spousal abuse, holding that only husbands' claims were barred by interspousal immunity.

Those discriminatory rulings actually came about 50 years ago, not just a generation ago, and they were abrogated by the respective legislatures of North and South Carolina, which passed laws making clear that both husbands and wives could sue for acts of violence by their spouses.

I noted that abusive wives who kill receive vastly shorter sentences than abusive husbands, citing data from the federal Bureau of Justice Statistics. The data I alluded to came from the BJS's study of large urban counties, and the disparity persists year after year.
11.13.2006 12:01pm
Dan Markel (www):
Carolyn, this is very interesting--I'm looking forward to reading it. In the current draft of my co-authored paper, Criminal Justice and the Challenge of Family Ties (forthcoming August 2007 in Illinois Law Review) my co-authors and I buy the conventional wisdom. I'm looking forward to reviewing your paper and revising accordingly. Best wishes, Dan Markel
11.13.2006 12:13pm
Mike Keenan:
I would be interested in an international comparison (as well as the time-based analysis). Also, I am interested in the cases where a woman kills her young children and how society responds to that.
11.13.2006 12:37pm
A. Zarkov (mail):
Scott Peterson got convicted and sentenced by a jury that was induced to hate him. To my mind the evidence presented was not even strong enough for a conviction, let alone a death sentence. The court allowed the use of highly emotional and prejudicial evidence to induce extreme hatred towards the defendant. Other aspects of that case seem peculiar. How is it that a witness had an attorney? Now imagine if Peterson's wife was having affairs and he turned up floating in San Francisco Bay. Would she have even been convicted let alone sentenced to death? Then there was the murder of Jose Vidal in Berkeley California. She saw him in a restaurant with another woman, went home and got a gun, then returned to the restaurant and shot him in public. Her defense: "He humiliated me by consorting with prostitutes." She got five years. The prosecutor even waived the weapon charge against her. Now I might not have the facts exactly correct as Vidal's colleagues related the story to me years after the fact. But these and many other cases demonstrate a consistent unequal treatment against men in intimate crimes.
11.13.2006 1:39pm
I always think of poor Tess of the d'Urbervilles: a Pure Woman Faithfully Presented by Thomas Hardy when this topic arises...
11.13.2006 3:38pm
i've investigated DV cases ranging from verbal spats all the way to homicides.

several things are clear.

1) at least in my state, this is the ONLY law where a police officer can arrest and get a 'good faith" exception to relieve him of pretty much any liability for the arrest, except in cases where it can be proved he did it out of malicious intent. that's not true in ANY other kind of crime. clearly, law enforcement and the justice system promote the idea of "when in doubt, just make an arrest, and let the court sort it out"

2) even in cases where there is no way to tell who is the "primary aggressor", cops are gonna arrest one primary aggressor. why? cause the law is written such that it is frowned upon to arrest both, and the paperwork is doubled. the latter part is the ultimate "decider"

3) as studies have shown (and common sense and experience), women are as likely or more likely to use force in domestic situations. in "hardcore" or aggravated assaults (black eyes, broken bones, serious bruising) men are the offenders about 85%+ of the time. when it comes to your garden variety shoving, slapping, it is more often the woman, and the stats get skewed because the VAST majority of men would never call the police to report getting slapped (see: macho, etc.), so these incidents don't get reported except when happenstanced upon, etc.

4) the courts are willing to get pretty stretched in admitting all sorts of hearsay (see the recent scotus cases on 911 tapes) even when the alleged victim doesn't want to testify. apparently, the whole "right to confront the accuser" thing is meaningless in DV cases.

5) you will almost never see a prosecutor charge a DV victim with false reporting, even when the evidence is overwhelming. this is too close to "blaming the victim" and no prosecuter wants any part of that political nightmare.

from a cop angle, DV's can be really annoying because there are a lot of 'fake victims' (especially in child custody and divorce type situations) that totally game the system for all its worth to get better civil judgments, or to get back at a cheating spouse, etc. and these fake victims totally do an injustice to the REAL victims, because they make all cases that much more suspect, when everybody knows that people lie when sex, money, jealousy and all other sorts of emotions are involved (vs. many other part I and Part II crimes, where if there is lying, it is for insurance purposes, and no suspect is fingered)

i have also seen investigators (officers) conduct biased investigations, even if unintentionally.
11.13.2006 4:08pm
karrde (mail) (www):

the novel by Thomas Hardy is an intriguing example.

It is interesting that Hardy's story puts Tess in what appears to have been the atypical case--unless English law (late Victorian era) treated women differently from American law of the time.

I'm assuming that the Ramsay's article refers primarily to American law.

I think the question on British law at the time is still open. However, since both American law and British law of the time were founded on the old British Common Law, and the two cultures had a great deal in common, I would be surprised if women were treated differently in Britain than they were in States.

PatHMV--I agree with you about the "in-laws" factor.

However, I doubt that changes the situation once intimate violence arrives in the courts. Ramsay's argument seems to be that once intimate violence cases arrived in the courts, the courts treated the women differently from the men.
11.13.2006 4:22pm
Houston Lawyer:
I hope you also cover the women who kill their children part of domestic violence. In my mind, those are all potential death penalty cases.
11.13.2006 4:34pm
Bruce Hayden (mail) (www):
Whenever female on male domestic violence comes up, I am reminded of a Tom Snyder (?) interview of several abused men, later parodied by SNL. In the original interview, the identities of the men are obscured, due to a suggestion that society would consider them to be unmanly letting their women beat them up. The host in the SNL skit so blatently hinted at the identities of the men that they were essentially exposed - as unmanly, etc.
11.13.2006 4:37pm
John M. Perkins (mail):
See Georgia v. Randolph, 126 S.Ct. 1515 (2006) where Roberts' dissent bought the sham DV excuse.
11.13.2006 4:37pm
bruce, that's especially ironic considering what happened to phil hartman

now, of course, women are FAR more likely to be killed by their male partner than vice versa.

however, when a woman does kill a man, the INSTANT kneejerk reaction on feminist blogs etc. is the "battered wife" defense (see: framingham).


we rarely hear the battered husband defense opined in such a situation.

11.13.2006 6:02pm
BoBo (mail):
Wow, that post was amazingly long.
11.13.2006 8:18pm
Carolyn Ramsey:
My research is a legal history project, and the data and analysis that I have published so far ends in 1920. I do not offer findings on gender bias in the present day, nor am I confident that the criminal justice system has treated abused women with favor, or even fairness, in the late twentieth and twenty-first centuries. On Friday, I will briefly describe my new book project which will extend my research beyond 1920.

Several readers also expressed interest in information about the murder of children. Tomorrow (November 14), I'll present some findings on that subject, along with my broader analysis of outcomes for female defendants. You can find a more detailed discussion of cases involving child victims in my University of Colorado Law Review article.

Thanks for your interest in my research.
11.13.2006 9:07pm
So reading about "battered women's syndrome", I'm wondering why there isn't a similar attempt to identify a 'SYNDROME' in which a man feels violent tendencies toward a current/former lover. Back in the day when it was an excuse that you found your woman in bed w/ another guy you could kill both of them and it was accepted. Can't we agree that there is a psychological 'syndrome' which might come over a man which contributes to him performing these acts. Should that lessen his punishment/guilt? I mean, what's good for the goose is good for the gander.
11.13.2006 11:44pm
Steph (mail):
what's good for the goose is good for the gander.

No what you mean in this instance is what is souse for the gander is sause for the goose.
11.14.2006 12:07am
jallgor (mail):
As I was reading Ms. Ramsey's post I was also thinking about domestic violence claims and divorce and custody proceedings. I have been witness to some nasty divorces where both men and women use domestic violence and child molestation innuendo to, in my opinion, purely harrass and intimidate their spouse (I say innuendo because it was never actually alleged but just hinted at in court papers). It seems that the well intentioned DV laws that readily grant restraining orders, etc. on little or no evidence allow people to use the the court system as a very heavy hammer.
11.14.2006 8:58am
jallgor, this happens quite frequently imo. i had a recent example that typifies this type of case. we go to a "verbal" dv. to make a long story short, both parties allege it was mostly verbal, although the guy did have a ripped t-shirt, that occurred when they were struggling over a bottle of vicodin.

neither party alleged anything more than that. the woman and the man were walking around totally "normally" etc.

about 1 hour later, a call comes to back up an ambulance that had been called back to the location for a "medical call". apparently, the woman had called with back pain, and had told the firefighters that it had happened when the man pushed her down the stairway BEFORE we had been there the first time. we arrived, and she was limping around, holding her back (none of which she had done before). the fire dept. guys hadn't even looked at her back to see if there was bruising (i did. there was none).

there was no bruising or anything on any part of her body, and she showed me the stairway, etc.

of course, she wanted to press charges, and also let us know that after we left, the husband had stormed out and told her he was getting a divorce.


well, needless to say (at a minimum) there was way more than reasonable doubt. heck, there wasn't even probable cause, since she had given two COMPLETLEY different accounts (thus, one HAD to be a lie) and there was zero physical evidence to support the second version.

she admitted that she had not told us the first time of her being shoved down the stairs. when it came time to take her written statement, she denied ever admitting that she hadn't told us being thrown down the stairs, and continued to change her story to make it sound best (all sorts of details).

these DV statements are taken under the penalty of perjury. she was blatantly lying. she had admitted to lying to us, there were two witnesses (officers ) to this, etc.

was she charged with false reporting, obstructing, and/or perjury? of course not.
11.14.2006 10:57am