The Volokh Conspiracy - No License to Kill for Men:

The provocation doctrine did not give men carte blanche to kill intimate partners who were unfaithful or who sought to leave the relationship. It did not even offer a successful means of mitigating a murder charge to manslaughter for many male defendants. Today's post provides an excerpt from, "Intimate Homicide: Gender and Crime Control, 1880-1920," 77 Univ. Colo. L. Rev. 101 (2006), that captures my argument about the comparatively stern treatment of men charged with murdering female intimates in the late 1800s and early 1900s.

Whereas women charged with murder were treated leniently, men risked not only receiving a guilty verdict, but also being sentenced to substantial prison terms or even executed. The common-law provocation doctrine mitigated the punishment of male defendants whose deadly behavior fell within its narrow parameters, but as both a doctrinal and a cultural matter, it offered a smaller safety net than is often assumed . . .

The condemnation of men's homicidal attacks on their families or lovers [in the late nineteenth and early twentieth centuries] has no parallel in the current American death-penalty regime. Indeed, whereas the miniscule number of women executed between 1880 and 1920 fits into a broader historical pattern of leniency toward female criminals, the willingness of courts and juries in the late 1800s and early 1900s to convict men of first-degree murder for slaying intimates contrasts starkly with the small fraction of death-sentenced men who committed intimate homicides in the late twentieth century.

Moreover, the pattern of holding men accountable for intimate murder crossed geographical and cultural boundaries. It is evident in the eastern and the western United States from 1880 to 1920. Like their New York City counterparts, Denver prosecutors typically pressed severe charges against men who killed intimates during this time period. Out of my sample of forty-eight cases involving male defendants, the Denver District Attorney's office charged forty-six men with some kind of murder . . . About sixty percent of [these] male murder defendants in my Denver sample were convicted and punished for committing murder in either the first or the second degree. Voluntary manslaughter verdicts constituted a comparatively rare outcome for men in the Denver cases, whereas first-degree murder convictions were the most common type of case disposition.

. . . Whereas other feminist scholars have criticized the heat-of-passion doctrine for treating intimate killings less severely than a fatal assault by a stranger, my research on the west and the northeast offers little reason to think that juries in those regions tilted the facts in favor of male defendants charged with killing women, or that courts construed provocation categories broadly to overturn men's convictions. In contrast to some southern states that 'expanded the notion of provocation to cover a broad range of sexual effrontery' [quoting Martha Umphrey], Colorado and New York policed male violence by refusing to depart from common-law categories.

. . . Trial judges in Colorado and New York often refused to instruct on provocation because the evidence showed cooling time or other factors precluding the defense as a matter of law. Appellate courts usually affirmed murder convictions in such cases, commenting on the poor fit between the facts and the elements of voluntary manslaughter.

Whereas reformist jurisdictions in the late twentieth century jettisoned provocation categories and cooling-time limitations, courts and juries in the 1800s and early 1900s were willing to execute male defendants who claimed that simmering jealousy, anger, or fear led them to commit homicide. This severity was not gender neutral. Rather, verdicts exonerating women due to their victims' past violence or romantic inconstancy contrasted with the lack of empathy for similar stories when a man was on trial. Moreover, in distinction to capital sentencing in the post-Furman era, the pain arising from romantic or family strife was generally not considered a mitigating factor that precluded the death penalty in men's cases.

Unlike modern jurisdictions, including New York, that use the EED [extreme emotional disturbance] doctrine, judges in the late nineteenth and early twentieth centuries refused to recognize an attempt by a wife or girlfriend to leave a man as legally adequate provocation. For example, in People v. Youngs [45 N.E. 460 (N.Y. 1896)], the murder victim separated from her husband and threatened to seek a divorce when she learned that he had given her 'a private disease.' He then went to a neighboring house where she and the children were staying and fatally shot her. Affirming the capital conviction, the New York Court of Appeals noted in dicta that the facts showed 'the absence of all . . . provocation . . . for the commission of the crime.'

. . . Legal doctrine and gender norms [also] negated 'simmering emotions' defenses raised by men in a variety of factual scenarios, including infidelity. Mere suspicion of adultery — especially suspicion that grew over a long period of time — was rarely recognized as an adequate basis for a heat-of-passion argument when a man killed his spouse. Thus, in both New York and Colorado, male defendants enraged by suspected infidelity often raised insanity, alibi, or accidental death defenses. Those who did request provocation instructions were frequently thwarted by adverse rulings from the bench.

For example, the Colorado Supreme Court affirmed a refusal to instruct on provocation where the defendant had 'suspicion, or even knowledge of prior acts of adultery,' but had not witnessed his estranged wife having sex with another man [quoting Garcia v. People, 171 P. 754, 755 (Colo. 1918)]. New York courts proved almost as rigorous. The case law suggests that a homicide following immediately upon an oral report of infidelity might receive mitigation in New York, but that any lapse of time prevented the defendant from raising a heat-of-passion defense.

As I demonstrate in my University of Colorado Law Review article, "Men who stalked their victims often sought to claim temporary insanity [or alcoholic insanity] to make an end run around the cooling-time doctrine. Yet unlike [women], male defendants could not successfully equate rage with temporary insanity." Nor were they exculpated when defense attorneys "put on expert witnesses to describe a condition known as delirium tremens, in which the suffer manifests trembling and delusions due to prolonged alcohol abuse."

In addition to presenting empirical data on case outcomes, my article links the harsh attitude of jurors and other legal actors toward men who perpetrated intimate murders with a wide array of cultural forms, including judicial opinions, family conduct manuals, and the public image-creation of political leaders like Theodore Roosevelt. All of these influences associated manliness with protection of the female sex:

In the mid-nineteenth century, influential social values, especially among the middle class, associated manliness with sobriety, industry, and control over the passions. These ideals of male self-restraint came under attack toward the end of the nineteenth century, when American men increasingly were urged to embrace their animal instincts in sports, sex, and battle. Nevertheless, at least up to 1920, the model white man remained protective of women and displayed reverence for their presumptively greater moral purity. He used his aggressive impulses to conquer beasts, other races, and even white male rivals, but he did not use violence against females.

Men who transgressed these prescriptive ideals did not make sympathetic victims when their violent behavior provoked women into lethal responses, nor did they make sympathetic defendants, when their efforts to exert power and control resulted in the violent death of their female intimates.

	[Carolyn Ramsey (guest-blogging), November 15, 2006 at 9:11am] Trackbacks No License to Kill for Men: The provocation doctrine did not give men carte blanche to kill intimate partners who were unfaithful or who sought to leave the relationship. It did not even offer a successful means of mitigating a murder charge to manslaughter for many male defendants. Today's post provides an excerpt from, "Intimate Homicide: Gender and Crime Control, 1880-1920," 77 Univ. Colo. L. Rev. 101 (2006), that captures my argument about the comparatively stern treatment of men charged with murdering female intimates in the late 1800s and early 1900s. Whereas women charged with murder were treated leniently, men risked not only receiving a guilty verdict, but also being sentenced to substantial prison terms or even executed. The common-law provocation doctrine mitigated the punishment of male defendants whose deadly behavior fell within its narrow parameters, but as both a doctrinal and a cultural matter, it offered a smaller safety net than is often assumed . . . The condemnation of men's homicidal attacks on their families or lovers [in the late nineteenth and early twentieth centuries] has no parallel in the current American death-penalty regime. Indeed, whereas the miniscule number of women executed between 1880 and 1920 fits into a broader historical pattern of leniency toward female criminals, the willingness of courts and juries in the late 1800s and early 1900s to convict men of first-degree murder for slaying intimates contrasts starkly with the small fraction of death-sentenced men who committed intimate homicides in the late twentieth century. Moreover, the pattern of holding men accountable for intimate murder crossed geographical and cultural boundaries. It is evident in the eastern and the western United States from 1880 to 1920. Like their New York City counterparts, Denver prosecutors typically pressed severe charges against men who killed intimates during this time period. Out of my sample of forty-eight cases involving male defendants, the Denver District Attorney's office charged forty-six men with some kind of murder . . . About sixty percent of [these] male murder defendants in my Denver sample were convicted and punished for committing murder in either the first or the second degree. Voluntary manslaughter verdicts constituted a comparatively rare outcome for men in the Denver cases, whereas first-degree murder convictions were the most common type of case disposition. . . . Whereas other feminist scholars have criticized the heat-of-passion doctrine for treating intimate killings less severely than a fatal assault by a stranger, my research on the west and the northeast offers little reason to think that juries in those regions tilted the facts in favor of male defendants charged with killing women, or that courts construed provocation categories broadly to overturn men's convictions. In contrast to some southern states that 'expanded the notion of provocation to cover a broad range of sexual effrontery' [quoting Martha Umphrey], Colorado and New York policed male violence by refusing to depart from common-law categories. . . . Trial judges in Colorado and New York often refused to instruct on provocation because the evidence showed cooling time or other factors precluding the defense as a matter of law. Appellate courts usually affirmed murder convictions in such cases, commenting on the poor fit between the facts and the elements of voluntary manslaughter. Whereas reformist jurisdictions in the late twentieth century jettisoned provocation categories and cooling-time limitations, courts and juries in the 1800s and early 1900s were willing to execute male defendants who claimed that simmering jealousy, anger, or fear led them to commit homicide. This severity was not gender neutral. Rather, verdicts exonerating women due to their victims' past violence or romantic inconstancy contrasted with the lack of empathy for similar stories when a man was on trial. Moreover, in distinction to capital sentencing in the post-Furman era, the pain arising from romantic or family strife was generally not considered a mitigating factor that precluded the death penalty in men's cases. Unlike modern jurisdictions, including New York, that use the EED [extreme emotional disturbance] doctrine, judges in the late nineteenth and early twentieth centuries refused to recognize an attempt by a wife or girlfriend to leave a man as legally adequate provocation. For example, in People v. Youngs [45 N.E. 460 (N.Y. 1896)], the murder victim separated from her husband and threatened to seek a divorce when she learned that he had given her 'a private disease.' He then went to a neighboring house where she and the children were staying and fatally shot her. Affirming the capital conviction, the New York Court of Appeals noted in dicta that the facts showed 'the absence of all . . . provocation . . . for the commission of the crime.' . . . Legal doctrine and gender norms [also] negated 'simmering emotions' defenses raised by men in a variety of factual scenarios, including infidelity. Mere suspicion of adultery — especially suspicion that grew over a long period of time — was rarely recognized as an adequate basis for a heat-of-passion argument when a man killed his spouse. Thus, in both New York and Colorado, male defendants enraged by suspected infidelity often raised insanity, alibi, or accidental death defenses. Those who did request provocation instructions were frequently thwarted by adverse rulings from the bench. For example, the Colorado Supreme Court affirmed a refusal to instruct on provocation where the defendant had 'suspicion, or even knowledge of prior acts of adultery,' but had not witnessed his estranged wife having sex with another man [quoting Garcia v. People, 171 P. 754, 755 (Colo. 1918)]. New York courts proved almost as rigorous. The case law suggests that a homicide following immediately upon an oral report of infidelity might receive mitigation in New York, but that any lapse of time prevented the defendant from raising a heat-of-passion defense. As I demonstrate in my University of Colorado Law Review article, "Men who stalked their victims often sought to claim temporary insanity [or alcoholic insanity] to make an end run around the cooling-time doctrine. Yet unlike [women], male defendants could not successfully equate rage with temporary insanity." Nor were they exculpated when defense attorneys "put on expert witnesses to describe a condition known as delirium tremens, in which the suffer manifests trembling and delusions due to prolonged alcohol abuse." In addition to presenting empirical data on case outcomes, my article links the harsh attitude of jurors and other legal actors toward men who perpetrated intimate murders with a wide array of cultural forms, including judicial opinions, family conduct manuals, and the public image-creation of political leaders like Theodore Roosevelt. All of these influences associated manliness with protection of the female sex: In the mid-nineteenth century, influential social values, especially among the middle class, associated manliness with sobriety, industry, and control over the passions. These ideals of male self-restraint came under attack toward the end of the nineteenth century, when American men increasingly were urged to embrace their animal instincts in sports, sex, and battle. Nevertheless, at least up to 1920, the model white man remained protective of women and displayed reverence for their presumptively greater moral purity. He used his aggressive impulses to conquer beasts, other races, and even white male rivals, but he did not use violence against females. Men who transgressed these prescriptive ideals did not make sympathetic victims when their violent behavior provoked women into lethal responses, nor did they make sympathetic defendants, when their efforts to exert power and control resulted in the violent death of their female intimates.