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.