The Volokh Conspiracy - Jury Sympathy for Abused Women Who Killed:

This post continues the description of my intimate homicide research, which I recently published in "Intimate Homicide: Gender and Crime Control, 1880-1920," 77 Univ. Colo. L. Rev. 101 (2006) and "Public Responses to Intimate Violence: A Glance at the Past," 121 Public Health Reports 460 (2006). Today, I'll focus on the comparatively lenient treatment that the criminal justice system, and particularly juries, accorded women charged with killing their intimates in the late nineteenth and early twentieth centuries. As I explain in my University of Colorado article, my work "goes beyond a simple explanation of the salient disparities in terms of chivalry or paternalism toward female offenders. Instead, it contends that verdicts in intimate murder cases in the late 1800s and early 1900s not only policed ideals of civilized masculinity [by condemning the male decedent's brutality toward women], but often tacitly recognized a factor similar to the one emphasized by domestic violence researchers today — past abuse that might lead a woman to kill her loved ones."

Throughout history, men have committed homicide more often than women have. But women sometimes killed their intimates, and when they did, two outcomes were prevalent: acquittal or conviction for a less serious offense than murder. For example, only one woman in fifteen was convicted of the capital charge of first-degree murder during a fourteen-year period in late nineteenth-century New York City. Eight of the fifteen were acquitted; four pled guilty or were convicted of the lesser offense of manslaughter; one was found guilty of second-degree murder, which did not carry the death penalty; and one died in prison before trial.

My Colorado sources yielded similar data. For instance, in Denver between 1880 and 1920, fourteen out of twenty-seven intimate homicide cases involving female defendants resulted in acquittals; six women were convicted of manslaughter; two cases were nol prossed; and another three resulted either in court-ordered dismissals, the refusal of the grand jury to indict, or the discretionary decision of the prosecutor not to press charges. Only one woman was convicted of second-degree murder, and one was convicted of the first-degree crime. No female defendants were executed in Colorado during the entire forty year period.

As I explain in my public health essay, which provides a succinct summary of the more colorful and detailed Colorado piece:

Juries seem to have based acquittals either on the insanity defense or on a self-defense theory that looked to past abuse, rather than simply focusing on the specific incident during which the homicide occurred. [Thus, in many cases, the assessment of a female defendant's guilt or innocence depended on an expanded context or time frame around the killing that helped to reveal the causes of her homicidal fear or rage.]

Self-defense theories often succeeded when the homicide victim was an adult man. In New York in 1891, for example, Ella Nelson was exculpated for killing her philandering lover when he threatened her with a pistol. A jury in the same city exonerated Maria Barbieri at her second trial after an appellate court ruled that evidence of her seduction, rape, and abandonment by the deceased were relevant to understanding why she slashed his throat in a saloon. More than a thousand miles away, a Colorado jury acquitted a domestic servant who fatally shot her abusive employer — a man with whom she also had a sexual relationship.

By contrast, the ideal of the nurturing mother made insanity claims the only route to acquittal for women who intentionally killed their children. For instance, in 1890, Wilhelmine Lebkuchner was found not guilty by reason of insanity after she killed her small sons by putting rat poison in their tea. Lebkuchner resumed work as a laundress following her acquittal, rather than being institutionalized.

The degree of moral denunciation directed at the men who allegedly drove these female defendants to kill constitutes the most remarkable aspect of the cases. Even child-murderers often contended that they had been rendered insane by maltreatment at the hands of a husband or male relative. For instance, Lebkuchner alleged that her brother-in-law disowned her after her husband's death, leaving her destitute and terrified that she would lose custody of her children. At least until 1920, when females gained a constitutional right to vote, the ideal man 'remained protective of women and displayed reverence for their presumptively greater moral purity.' A man who beat, raped, or abandoned a woman failed in his duty to protect the so-called weaker sex; his actions thus justified or at least excused the woman's homicidal response.

Female defendants who defied gender norms by drinking or engaging in illicit sex could expect harsher verdicts than those who played more traditional roles. However, when juries found such deviant women guilty of any criminal homicide, they typically convicted them of milder, non-capital offenses. Female defendants' testimony about being brutally abused by their alleged victims counterbalanced their violation of Victorian prescriptions for proper feminine behavior. Juries thus spared them from long prison sentences or the death penalty.

The revised narrative presented here suggests the need to rethink some standard assumptions underpinning feminist approaches to the criminal law. However, I do not mean to paint an overly glowing picture of women's treatment in the past, nor do I seek to minimize the problem of domestic violence or the shortcomings of the state's response to it. In my University of Colorado Law Review article, I strive to present a nuanced view of a society that treated male defendants rigorously, but often gave abused women more credit for their stories of suffering than juries, police, and other agents of the state have done in more recent times. Yet, I also recognize that such leniency toward women came at a cost, for it was paired with a paternalistic view of their entire sex. As I conclude in the Colorado piece:

The recognition of long time frames leading to homicide had the positive potential to justify a woman's choice of violence as a last resort in a relationship that put her life at risk. Nevertheless, the strategy still embodied a subordinating attitude toward women. Exculpating traumas included not only physical blows and death threats, which legitimately might lead to a defensive killing, but also broken engagements and other emotional harms that, in my view, responsible adults must learn to bear. The urge to protect female honor from the dalliances of rakish men may have harmonized with the claims of a husband who killed his adulterous wife; both recognized nineteenth-century concerns with reputation, property, and sexual exclusivity. Yet, the acquittal of women whose anger at romantic rejection reached the boiling point or whose past suffering or even alcoholism allegedly resulted in insanity often went beyond the bounds of traditional exculpating or mitigating doctrines, as they were applied to men.

Tomorrow, I'll continue my discussion by turning to male defendants' cases. I welcome questions and comments.

	[Carolyn Ramsey (guest-blogging), November 14, 2006 at 9:41am] Trackbacks Jury Sympathy for Abused Women Who Killed: This post continues the description of my intimate homicide research, which I recently published in "Intimate Homicide: Gender and Crime Control, 1880-1920," 77 Univ. Colo. L. Rev. 101 (2006) and "Public Responses to Intimate Violence: A Glance at the Past," 121 Public Health Reports 460 (2006). Today, I'll focus on the comparatively lenient treatment that the criminal justice system, and particularly juries, accorded women charged with killing their intimates in the late nineteenth and early twentieth centuries. As I explain in my University of Colorado article, my work "goes beyond a simple explanation of the salient disparities in terms of chivalry or paternalism toward female offenders. Instead, it contends that verdicts in intimate murder cases in the late 1800s and early 1900s not only policed ideals of civilized masculinity [by condemning the male decedent's brutality toward women], but often tacitly recognized a factor similar to the one emphasized by domestic violence researchers today — past abuse that might lead a woman to kill her loved ones." Throughout history, men have committed homicide more often than women have. But women sometimes killed their intimates, and when they did, two outcomes were prevalent: acquittal or conviction for a less serious offense than murder. For example, only one woman in fifteen was convicted of the capital charge of first-degree murder during a fourteen-year period in late nineteenth-century New York City. Eight of the fifteen were acquitted; four pled guilty or were convicted of the lesser offense of manslaughter; one was found guilty of second-degree murder, which did not carry the death penalty; and one died in prison before trial. My Colorado sources yielded similar data. For instance, in Denver between 1880 and 1920, fourteen out of twenty-seven intimate homicide cases involving female defendants resulted in acquittals; six women were convicted of manslaughter; two cases were nol prossed; and another three resulted either in court-ordered dismissals, the refusal of the grand jury to indict, or the discretionary decision of the prosecutor not to press charges. Only one woman was convicted of second-degree murder, and one was convicted of the first-degree crime. No female defendants were executed in Colorado during the entire forty year period. As I explain in my public health essay, which provides a succinct summary of the more colorful and detailed Colorado piece: Juries seem to have based acquittals either on the insanity defense or on a self-defense theory that looked to past abuse, rather than simply focusing on the specific incident during which the homicide occurred. [Thus, in many cases, the assessment of a female defendant's guilt or innocence depended on an expanded context or time frame around the killing that helped to reveal the causes of her homicidal fear or rage.] Self-defense theories often succeeded when the homicide victim was an adult man. In New York in 1891, for example, Ella Nelson was exculpated for killing her philandering lover when he threatened her with a pistol. A jury in the same city exonerated Maria Barbieri at her second trial after an appellate court ruled that evidence of her seduction, rape, and abandonment by the deceased were relevant to understanding why she slashed his throat in a saloon. More than a thousand miles away, a Colorado jury acquitted a domestic servant who fatally shot her abusive employer — a man with whom she also had a sexual relationship. By contrast, the ideal of the nurturing mother made insanity claims the only route to acquittal for women who intentionally killed their children. For instance, in 1890, Wilhelmine Lebkuchner was found not guilty by reason of insanity after she killed her small sons by putting rat poison in their tea. Lebkuchner resumed work as a laundress following her acquittal, rather than being institutionalized. The degree of moral denunciation directed at the men who allegedly drove these female defendants to kill constitutes the most remarkable aspect of the cases. Even child-murderers often contended that they had been rendered insane by maltreatment at the hands of a husband or male relative. For instance, Lebkuchner alleged that her brother-in-law disowned her after her husband's death, leaving her destitute and terrified that she would lose custody of her children. At least until 1920, when females gained a constitutional right to vote, the ideal man 'remained protective of women and displayed reverence for their presumptively greater moral purity.' A man who beat, raped, or abandoned a woman failed in his duty to protect the so-called weaker sex; his actions thus justified or at least excused the woman's homicidal response. Female defendants who defied gender norms by drinking or engaging in illicit sex could expect harsher verdicts than those who played more traditional roles. However, when juries found such deviant women guilty of any criminal homicide, they typically convicted them of milder, non-capital offenses. Female defendants' testimony about being brutally abused by their alleged victims counterbalanced their violation of Victorian prescriptions for proper feminine behavior. Juries thus spared them from long prison sentences or the death penalty. The revised narrative presented here suggests the need to rethink some standard assumptions underpinning feminist approaches to the criminal law. However, I do not mean to paint an overly glowing picture of women's treatment in the past, nor do I seek to minimize the problem of domestic violence or the shortcomings of the state's response to it. In my University of Colorado Law Review article, I strive to present a nuanced view of a society that treated male defendants rigorously, but often gave abused women more credit for their stories of suffering than juries, police, and other agents of the state have done in more recent times. Yet, I also recognize that such leniency toward women came at a cost, for it was paired with a paternalistic view of their entire sex. As I conclude in the Colorado piece: The recognition of long time frames leading to homicide had the positive potential to justify a woman's choice of violence as a last resort in a relationship that put her life at risk. Nevertheless, the strategy still embodied a subordinating attitude toward women. Exculpating traumas included not only physical blows and death threats, which legitimately might lead to a defensive killing, but also broken engagements and other emotional harms that, in my view, responsible adults must learn to bear. The urge to protect female honor from the dalliances of rakish men may have harmonized with the claims of a husband who killed his adulterous wife; both recognized nineteenth-century concerns with reputation, property, and sexual exclusivity. Yet, the acquittal of women whose anger at romantic rejection reached the boiling point or whose past suffering or even alcoholism allegedly resulted in insanity often went beyond the bounds of traditional exculpating or mitigating doctrines, as they were applied to men. Tomorrow, I'll continue my discussion by turning to male defendants' cases. I welcome questions and comments.