Criminal law and women: giving the abused woman who kills a jury of her peers who appreciate trifles

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Author: Marina Angel
Date: Winter 1996
From: American Criminal Law Review(Vol. 33, Issue 2)
Publisher: Georgetown University Law Center
Document Type: Article
Length: 65,903 words

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Susan Glaspell's 1916 play "Trifles" and its short story version "A Jury of Her Peers" presents the deliberations of a jury of women discussing the conduct of an abused women who killed her husband, the work demonstrates the problems of women's access to justice under laws written by men. At the time Glaspell wrote these works, laws were being developed to address wife abuse, but domestic violence went unnoticed and unabated for 50 years. Political and legal action by women is needed to integrate the perspective of women and other outsiders into the legal system.

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I. Introduction II. Stories

A. The Story--"Fiction"

B. The Story--"Fact"

C. A Jury of Her Peers as a Pedagogic Device III. The Law; History and Politics

A. Jurisprudential Debates Affecting Women

B. The History of Legalized Woman Abuse: Roman, English, and

Early American Law

C. The Right to Vote: A Black/White Split

D. The Supreme Court's Early Decisions

E. The Vote Connected to Jury Service

1. The Law Reviews

2. The State Courts

IV. Facts: The Reality of Woman Abuse

A. Statistics & Patterns

B. Newspaper Reports on Known and Unknown Women

C. Efforts to Evaluate, Control and Respond

1. The International Arena

2. Professional and Religious Organizations

3. The Official Players: Reports, Lawsuits, and Arrests

4. The Jury Studies

V. Substantive Criminal Law

A. Making Value Judgments

B. The Reasonable Man and the Insane Woman

1. The Common Law

2. The Model Penal Code

a. Extreme Mental or Emotional Disturbance

b. Self-Defense

3. Equal Application and Favorable Interpretations

C. Facts: Male and Female

1. Different Concepts of Time

2. Different Definitions of Emotional Self Defense

3. A Woman's World

VI. The Modern Era and Still No Jury of Her Peers

A. The Beginning of the Modern Era: Ballard and Fay

B. The Voluntary Exclusion Cases: Hoyt and Taylor

C. The Peremptory Challenge Cases for African American Males

and All Females: Batson and J.E.B.

VII. Conclusion


In the spring of 1985, I drove from Philadelphia to Chestnut Hill, Massachusetts, to attend a women's conference.(1) After registration and dinner, the conference started with a film version of Susan Glaspell's Trifles,(2) a 1916 one-act play about an abused wife who kills her abusive husband. The next morning &mall groups discussed the film. The three men in my group dominated the discussion. One informed us that he had represented the Black Panthers and instructed that the only true route to equality was through violence. Women, therefore, had to learn to use violence to achieve political equality in America. I finally responded that I knew of no instance in history of women as a group using violence to achieve feminist political goals. The woman facilitator at that point blurted out "Lysistrata!"(3) I pointed out to her that a woman's saying no to sexual intercourse was not violent but could lead to a violent male reaction.

The only memento I took back to Philadelphia--one that has been a tremendous influence on me, my friends, colleagues, and students--was the short-story version of Trifles, called A Jury of Her Peers.(4) The story is written from the perspective of those closed out of a legal system--in this instance, women--and how they react when that legal system is about to destroy one of their own. Women did not make homicide law as it existed in 1916: they were not judges; they were not members of state legislatures; they could not vote until 1920;(5) and they could not serve on juries in most states until the 1940s.(6)

I begin discussions of A Jury of Her Peers by asking what evidence the women in the story saw that the men did not. The women in the story start from different facts and reach different legal conclusions than the men in the story. The men's views of fact and law reflect our traditional legal system, which men created and continue to dominate. My question about evidence is about perceptions and leads to a discussion of how different experiences and values affect analysis--issues that we must all learn to deal with in our increasingly diverse societies.

The term "second-generation diversity issues"(7) is currently in vogue but means different things to different people. To some extent, the traditional outsiders- women and minority men--have been permitted to enter existing systems, including the legal system. These systems are not of our creation, nor do they satisfy us. Many of us question the basic factual and moral assumptions underlying existing systems. To the outsiders, "second-generation diversity issues" means the world has to adjust to us. To those who created the existing systems, the term means those newly admitted have to adjust to them. If we continue to speak in such substantially different voices,(8) we will all have to learn new methods of listening in order to communicate with each other.(9) To appreciate other views, we must learn the joy and uncertainty of valuing differences.

The major challenge of our era is understanding and including diverse perspectives and values while at the same time making the moral choices necessary to develop and enforce laws responsive to and accepted by our diverse societies. Ending the deep-seated problem of woman abuse requires a multifaceted approach that enlists the creative use of all our perspectives and abilities.

Using A Jury of Her Peers in my courses prompted me to examine woman abuse and its legal legitimacy from Roman law to English law to twentieth century American law. It led me to ask who Susan Glaspell was and how she was able to produce a story in 1916 that reflects the major issues of today. It led me to examine the history of women's struggles to participate in the political processes of this country, including struggles to obtain the right to vote and the right to serve as jurors.

This Article reflects the style of the playwright Pirandello.(10) It is a story within a story within a story. The Article starts with Susan Glaspell's story, A Jury of Her Peers. Next, it travels through time and place to explore female and male views of fact and law in woman abuse. It takes you through stages of growth--hers, mine, and hopefully yours--in understanding Susan Glaspell's story of an abused woman who killed her abuser.


A debate rages about the appropriateness of stories as the basis for legal analysis.(11) From my first day as a law student, I thought of cases as short stories about real human beings,(12) selected by editors and put together in sequences of similar but slightly different stories to illuminate moral dilemmas and to show how the lawmakers of our society resolved them. I have always read the stories to figure out who wanted what, how they tried to get it, and whether the lawmakers would allow them to get it.

The most traditional definition of a "holding" is a rule of law essential to the decision of the facts of a case.(13) Law professors purportedly teach students to examine the facts of cases carefully in order to learn to derive rules of law from facts. The common law has done this for centuries, and, before the common law, the Bible did it with parables.(14)

Value systems are built into stories, but some stories have been around so long and have been repeated so widely that they are taken as objective, scientific truth.(15) We have all been socialized by these stories that foreclose recognition of other perspectives.(16) For those who start from a different perspective, many are too overwhelmed by the power and influence of the dominant perspective to challenge the validity of the stories.

I do not understand why there is a fight about using stories. I do understand that there can be a fight about whether we use my story or your story. A court's recitation of the facts of a case is always a story, an edited version of reality.(17) Too often, the facts that have been left out are the ones that outsiders care about. As a result, the story of facts that courts create can be fiction, and the excluded fiction of outsiders can be fact.

As outsider groups make their way into the power structures of our society, including the legal system, they begin to express dissatisfaction with the underlying value systems of the existing stories. A few years ago a number of our student groups at Temple Law School created a Diversity Forum to raise issues of how existing legal doctrines and teaching methods excluded them. Their pain led me to try to find ways to include them and their experiences. Having outsiders tell their stories, often in literary terms, allows different perceptions of facts that can lead to different perceptions of law.(18)

We must get beyond legal doctrines in order to see the real horror and harm of woman abuse.(19) We must use literature, history, sociology, and current news reports to expose the extent of woman abuse. We must give women full participation in the recognition, definition, and solution of the problem.

When a legal system is very warped, minor adjustments have little impact and only serve to mask major faults. An outsider's view is needed to reveal major faults. Traditional law has allowed possessive and angry men to act out by beating and killing "their women." The law was developed by men who could identify with other men in pain and legitimize their abusive acts against women in such a way as to hide the horror of the behavior.

Traditionally, a veil of secrecy and privacy has been drawn over sexual and physical abuse of women in the family.(20) The failure of women in every community to tell their stories(21) even to each other, much less within and without their communities, has made the denial of such abuse by society possible, despite overwhelming statistics to the contrary.(22) Each community, each group (or perhaps the males of each group) has guilt-tripped its women into maintaining privacy in order to protect the public image of the group (or perhaps the image of the males of each group).

I was particularly struck by the degree of denial I encountered at a conference on Greek American women that I coordinated.(23) The mention of battered woman syndrome by a panelist solicited a hysterical response from an otherwise dignified matron in the audience who claimed that no such thing could possibly exist in the Greek American community. The fracas finally ended when the oldest woman panelist told the story of her grandmother, the matriarch of a Greek clan in Philadelphia, holding court in the family living room over disputes arising within that community, many of which involved abused women. This incident made me aware of society's denial of woman abuse and the way informal structures can react to this serious problem.

A. The Story--"Fiction "

Susan Glaspell's A Jury of Her Peers was inspired by an actual court case;(24) yet, her story contained a reality that the court overlooked. As a young reporter in 1901, Susan Glaspell covered the case of an Iowa farm wife charged with killing her husband with a hatchet while he slept.(25) The wife pleaded not guilty, claiming she was asleep in bed with her husband but did not awaken quickly enough to see the real killer. The case's effect on Susan Glaspell resulted in A Jury Of Her Peers fifteen years later.(26)

Susan Glaspell refined the fictional case of an abused woman who kills her abuser into the most dramatic and legally complex situation: The wife was emotionally abused, but not obviously physically abused by her husband; she killed her sleeping husband sometime after the specific abusive incident had taken place; she killed by a means--strangulation with a knotted rope--considered difficult and abnormal for a woman, especially since there was a loaded gun in the house.

Susan Glaspell told this story in two formats: in a short story, A Jury of Her Peers, and in a play, Trifles. The women form the jury and the trial takes place in the kitchen. Both the women in the story and the women in the audience come to the story with a different database than the men in the story and in the audience; women's facts of life are different from those of men. Different views are inherent in dialogue.(27) Susan Glaspell uses dialogue powerfully to express the different views of the sexes and of characters of the same sex.

Susan Glaspell's recognition of the connection between language and reality places her in the forefront of "contemporary feminist critics who see language at the heart of any possible realignment of the sexes."(28) Until women's reality has a name its existence is deniable. Sexual harassment always existed but was not recognized by society until named.(29) This is also true of marital rape, woman abuse, stalking, and separation attack. Susan Glaspell's women have trouble finding words to convey their realities. For much of the play the women are silent, communicating only through looks and pauses. The women are confined in the kitchen, "the quintessential 'woman's room'",(30) while the men are free to explore the farm, the house and its grounds. Yet, the men are trapped by limited and rigid notions that force them to seek evidence primarily in the bedroom, the scene of the killing. They fail to find what they consider most important, the motive. On the other hand, the women find the motive while acting in their normal way in their normal room, the kitchen. They silently agree to conceal their discovery by destroying the evidence. This result of the trial in the kitchen made it difficult, if not impossible, for a jury in a real courtroom of 1916 to convict the wife of the killing of her husband.

Women's realities are not the legal or societal norms because women are closed out of the law-making bodies of society. Women's realities are ''queer,''(31) a word constantly repeated in the story and used in the sense of strange when viewed from the dominant male perspective.(32) To the men, the wife suspected of killing her husband "looked--queer."(33) The word "trifles,"(34) the title of Susan Glaspell's dramatic version of the story, is used both to define and to denigrate the women's perceptions, concerns, and values that are critical to understanding the story.

There are seven characters in Susan Glaspell's story. The two principal ones never appear: the accused, Minnie Foster Wright is in jail, and her husband, Mr. Wright, is dead. On stage are Martha Hale and her husband, who discovered the body; Mrs. Peters, also referred to as the sheriff's wife, and her husband; and Mr. Henderson, the county attorney.

Susan Glaspell effectively uses names to convey identity in its larger sense.(35) The men identify the women through their relationship to a particular man: they are Mrs. Hale, Mrs. Peters, or Mrs. Wright. As her story and character develop, the accused wife evolves from Mrs. Wright, to Minnie Wright (a play on words),(36) to Minnie Foster Wright, to Minnie Foster, her birth name. Martha Hale's independence is marked at the story's first mention of her. We never learn the first name of Mrs. Peters, the sheriff's wife, although she also develops through the course of the story.

There are repeated images of things half-done, of isolation, and of abuse. The story opens with Martha Hale in her own kitchen with "her bread all ready for mixing, half the flour sifted and half unsifted."(37) The things half-done, "things begun--and not finished,"(38) are metaphors for the incomplete nature of our law and culture that does not appreciate the different but equally valuable viewpoints and contributions of women and men.(39) Susan Glaspell's story demonstrates the value of diversity and seeks to foster communication and cooperation among those with different viewpoints(40)--not to replace patriarchy with matriarchy, but to replace isolation with connection.

A sense of isolation permeates as Susan Glaspell describes the "lonesome stretch of road"(41) leading to the "lonesome-looking place"(42) that is the Wright's farmhouse. Mr. Hale discovered the body when he went to see whether Mr. Wright would be willing to share expenses for a telephone, a form of communication that Mr. Hale recognized would help ease the isolation of farm wives.(43) Our first knowledge of the relationship between Mr. Wright and Minnie Wright comes from Mr. Hale, who said Mr. Wright had refused a telephone before and that he did not talk much himself.(44) Martha Hale later describes Mr. Wright as "a hard man"(45) and as "close."(46) When Mr. Hale strays in telling his story from what the county attorney considers the facts by adding, "I didn't know as what his wife wanted made much difference to John",(47) the county attorney instructs Mr. Hale to recount "just what happened."(48) But the county attorney's narrow view of the facts causes him to interrupt a witness who would have shed light on motive--the key element in the case.(49) The sheriff and county attorney were suspicious of Minnie Foster Wright's story because she admitted she was sleeping in bed with her husband when he was strangled but "didn't wake up."(50) The men looked for a motive for the killing, "[s]omething to show anger--or sudden feeling,''(51) in the bedroom, the barn, and outside the house. The men did not look in the kitchen, dismissing it with, "[n]othing here but kitchen things."(52)

The men and women are aware that their sexes can act differently, and they are uncertain of each other. The men disdain the women's concern for "trifles,"(53) for the tasks left undone. They sense, however, that they may have missed something and worry about leaving the women alone in the kitchen.(54) Mr. Hale scornfully states, "But would the women know a clue if they did come upon it?"(55) Even if they would, the county attorney described Mrs. Peters, the sheriff's wife, as "one of us,"(56) as "married to the law."(57) As such, Mrs. Peters could be relied on to maintain the male value system and keep Martha Hale in line.

Left in the kitchen, the women wonder what prevented Minnie Foster Wright from finishing her tasks.(58) They have a growing awareness of abuse. In her role as sheriff's wife, however, Mrs. Peters says, "The law is the law."(59) Martha Hale responds, "The law is the law--and a bad stove is a bad stove."(60)

This exchange is reminiscent of Antigone's call for respect to a higher law, as opposed to the positive law of Creon.(61) In both cases man-made law, positive law, did not encompass women's realities. The mundane, everyday essentials, the proper burial of the dead in one case and the preparation of food for the living in the other, are not adequately addressed and barely acknowledged by the law.

The women discover that Minnie Foster was sewing quilt pieces when she was interrupted.(62) Similarly, from bits and pieces, from trifles, the women quilt together the story of what really happened.(63) The women find one uneven quilt piece that looks "as if she didn't know what she was about!"(64) Out of concern, "their eyes met--something flashed to life, passed between them."(65) It was an unstated conspiracy to destroy evidence. Martha Hale then pulls out the stitching "that's not sewed very good,"(66) and proceeds to "replace bad sewing with good."(67)

The men dismissed the women's interest in the quilting as a trifle.(68) The women wonder about the final covering that was to be made from the quilt pieces and whether "she was going to quilt it or just knot it?"(69) This question led the women to make the connection between the method by which the husband was killed, strangulation with a knotted rope, and the quilt. The men never made the connection. The story ends with the county attorney facetiously asking about the quilt and Martha Hale responding that Minnie Foster Wright was going to "knot it, Mr. Henderson."(70)

While in the kitchen, the women find a bird cage with a broken door.(71) The symbolism is clear. Minnie Foster "was kind of like a bird herself."(72) She had sung in the church choir as a young girl.(73) When they open her sewing basket to gather her quilt pieces and sewing things to take to her in jail, they find a dead bird with a broken neck wrapped in a piece of silk inside a pretty box.(74) Martha Hale knew "Wright wouldn't like the bird . . . a thing that sang. She use to sing. He killed that too. "( 75)

There is an increasing sense of solidarity between the women; a recognition of shared experiences. "And then again the eyes of the two women met--this time clung together in a look of dawning comprehension, of growing horror. Mrs. Peters looked from the dead bird to the broken door of the cage. Again their eyes met."(76) Mrs. Peters recalls that when she was a girl a boy had killed her kitten with a hatchet.(77) She remembers, "If they hadn't held me back, I would have . . . hurt him."(78) Mrs. Hale concludes, "We all go through the same things--it's all just a different kind of the same thing! If it weren't--why do you and I understand? Why do we know--what we know this minute?'"(79)

A value system based on concern, fear, intervention, and care drives the women. Their fear includes fear of psychological and physical harm to themselves and others but also fear they will fail to act to protect themselves or others. Martha Hale fears she let Minnie Foster "die for lack of life."(80) She should have taken the initiative and intervened earlier. She should not have passively allowed abuse to occur and continue. She cries, "Oh, I wish I'd come over here once in a while! . . . That was a crime! That was a crime! Who's going to punish that?"(81)

The women exhibited the same kind of uneasiness and uncertainty that the men had earlier exhibited as to whether the two sexes would see the same facts and draw the same conclusions. Mrs. Peters felt the men would laugh at their concern about the dead canary,(82) but Martha Hale wasn't sure. "Maybe they would, . . . maybe they wouldn't."(83) When the men returned to the kitchen, Mrs. Peters tried to hide the dead canary in her handbag but it didn't fit.(84) Martha Hale put it in the pocket of her coat.(85) The unstated conspiracy between the two women was complete. Ultimately, the members of the audience join in the conspiracy when they applaud at the end of the play.(86)

In A Jury of Her Peers, it is never openly stated that Minnie Foster Wright was an abused wife or, if abused, whether the abuse was emotional or physical. But the women uncovered evidence of the abuse that they believed permeated Minnie Foster Wright's life and led her to kill her husband. The women then destroyed evidence, "replace[d] bad sewing with good," and concealed evidence, the final hiding of the dead canary. The jury in the kitchen acted without the normal trappings of an actual jury trial, without opening and closing arguments by lawyers and without a judge's instructions on the law.

It is not clear whether the women found Minnie Foster Wright not guilty of any crime under all the facts or whether they believed a fair trial was not possible under the law as it then existed. If the latter, it is not clear whether that was because no women would have been on the jury or because existing man-made law could not result in justice for an abused woman.(87) Avoiding the trial would prevent harm; it would free Minnie Foster Wright and prevent the exposure of Mr. Wright as an abuser, an exposure that could serve no practical purpose.

B. The Story--"Fact"

Susan Glaspell was a popular author whose works centered on women's lives in the American Midwest.(88) She lived from 1876(89) to 1948(90) and won the Pulitzer Prize for drama in 1931.(91) Susan Glaspell grew up in Davenport, Iowa,(92) received a Ph.D. from Drake University in 1900 and began her career as a reporter for the Des Moines Daily News.(93)

Her major newspaper stories involved the case of State v. Hossack.(94) Her initial reporting on the case was unsympathetic and stereotypical.(95) She had been socialized to accept the traditional male view of facts and law. Her headline read, "Mrs. Hossack thought to be crazy."(96) She reported that Mr. Hossack was not supposed to have any enemies(97) and that only an insane woman would have killed such a husband.(98) Susan Glaspell emphasized the most damaging evidence, Mrs. Hossack's claim that she was asleep beside her husband but did not wake up while he was being murdered with an ax.(99) Susan Glaspell's view of the wife changed after she visited the farmhouse with the sheriff and possibly the local county attorney.(100) Mrs. Hossack went from being "cold, calm, and menacing"[101] to "worn and emaciated,"(102) from "powerful"(103) to "older, frailer, and more maternal."(104)

The facts as reported by the Iowa Supreme Court in Hossack in 1902 indicated some sensitivity to the situation of an abused wife. The couple had been married for thirty-three years and had nine children, five of whom were at home on the family farm at the time of the killing.(105) The court understood that Hossack family life had often been unpleasant and recognized Mr. Hossack's domineering, narrow-minded manner as the likely cause of the family's problems.(106) There was a history of conflict between the husband and wife. The court cited, as an example, an incident that occurred years before the murder, when Mrs. Hossack went to a neighbor and asked him to calm her husband, fearing that otherwise, " [h]e will kill some of us before morning."(107) This incident evidences abuse not only of the wife but also of the children.(108) The court quotes the neighbor's statement, " 'There is a law for a man that abuses his family.' "(109) The law, however, did not stop the abuse nor could it have helped Mrs. Hossack at her trial.

Motive was a key factor in the Hossack case,(110) just as it was in A Jury of Her Peers. If Mrs. Hossack killed her husband because of his abuse of her and their children, it would not have been a reductive or exculpatory factor at her trial. Instead, it would have provided grounds for finding her guilty of premeditated murder, the highest degree of homicide. It was therefore to Mrs. Hossack's benefit to claim, with the full support of her children, that the abuse had ceased by the time of the killing, thereby eliminating a motive and allowing blame to be placed on an unknown stranger.

A year before the killing, on Thanksgiving Day 1899, the conflict escalated, and Mrs. Hossack left to live with a married daughter.(111) According to the Iowa Supreme Court, three neighbors intervened in the dispute, and Mrs. Hossack returned to the family farm.(112) Mrs. Hossack placed little faith in her husband's promises, however, and asked one of the neighbors to stay for the night.(113) A witness stated that two months after the purported reconciliation, Mrs. Hossack wept and said, " 'It is just as bad as it ever was.' "(114) With this one exception, no more family difficulties were made public.(115) At the trial, the children all supported their mother, testifying that the conflict had ceased.' 16

They had a family reunion again at the farm on Thanksgiving Day 1900, preceding the Saturday on which the killing occurred.(117) The court stated that there was no indication of any tension between the Hossacks on that day.(118) An abusive situation, however, can peak on a holiday,(119) as it had for the Hossacks the prior Thanksgiving.

On the night of the killing the wife and husband were in bed together. She said she was awakened after midnight by a noise that sounded like two boards being struck together.(120) She jumped out of bed, went to the sitting room and heard the door of the porch close. Next, she heard strange noises coming from her husband, so she called the children and together they entered the bedroom and found him fatally wounded.(121)

Although the Iowa Supreme Court's rendition of the facts indicates that it understood it was dealing with an abusive husband and an abused wife and family, most of its statement of law was unrelated to abuse. Motive was the major issue in the case. The court found error in the trial court's refusal to give the wife's requested instruction on motive, but it did not discuss the requested instruction.(122) It did not find error in the instruction regarding the feelings between husband and wife, but the court did not discuss this instruction either. The court reversed on the basis of improperly introduced evidence, ordering excluded from retrial three photographs of the body, three hairs from the ax, and the expert testimony regarding this evidence.(123)

An indication that the Hossack case had a massive impact on her is the fact that after filing her last stories in the case, Susan Glaspell abandoned journalism and began writing fiction.(124) She may never have learned that the original conviction was overturned and that the retrial resulted in a hung jury.(125) Susan Glaspell married radical playwright George Cram Cook in 1913 and thereafter spent summers in Provincetown, Massachusetts and winters in New York City's Greenwich Village.(126) She met many major literary figures and was exposed to the leading political issues of the day, including women's suffrage.(127) She was one of the founders of Heterodoxy, a New York feminist organization.(128) Her friend, Ruth Hale, founded the Lucy Stone League, an organization dedicated to the importance of women using their birth names.(129)

In 1915, Susan Glaspell and her husband founded the Provincetown Players as a vehicle for themselves and their literary friends,(130) who included, among others, Theodore Dreiser, Edna St. Vincent Millay, Eugene O'Neill, John Reed, and Wilbur Daniel Steele.(131) Eugene O'Neill's Bound East for Cardiff and Susan Glaspell's Trifles were produced in 1916, the second season of the Provincetown Players.(132) Her story adaptation, A Jury of Her Peers, appeared in Everyweek and in Best American Short Stories of 1917.(133)

A Jury of Her Peers was the culmination of a growth process that Susan Glaspell underwent, beginning with the trial on which she reported as a young woman in 1901. By 1916, she had a depth of understanding of feminism and woman abuse that was absent from her early newspaper reports.(134) Her story is a critique of law and the legal system by a politically aware and activist woman of 1916. The reader of A Jury of Her Peers or viewer of Trifles is forced to take the perspective of outsiders. The story centers on women characters and connects their different views of facts and justice to their final judgment.

Susan Glaspell's use of literature to highlight legal wrongs against an outsider group is part of a historic law and literature movement. Aristotle cited Sophocles' Antigone(135) as a powerful statement of the difference between positive law and justice, between law and equity, between the viewpoint of a man in power, Creon, and a woman out of power, Antigone. Susan Glaspell's husband, George Cram Cook, was fascinated by classical Greek drama. The couple moved to Greece in 1923,(136) where he led a revival of interest in and production of classical drama. He died there in 1924.(137) Susan Glaspell's story and play draw on classical Greek drama by observing the unities of time, place, and action, and avoiding any violence on stage.(138)

Literature set the theme of the earliest article on woman abuse in an American law review.(139) In 1891, Irving Browne used Shakespeare's Taming of the Shrew and Othello to articulate English law on the relationship between husband and wife and to condemn woman abuse. In Taming of the Shrew, Petruchio says to his wife, Kathryn:

I will be master of what is my own; She is my goods, my chattels; she is my house, My household stuff, my field, my barn, my horse, my ox, my ass, my any thing. (140)

The housebroken Kathryn concedes:

Thy husband is thy lord, thy life, thy keeper, Thy head, thy sovereign.... Such duty as the subject owes the prince Even such a woman oweth to her husband.(141)

When Petruchio threatens to strike Kathryn, however, she says, "If you strike me, you are no gentleman."(142) Browne pointed out that Petruchio, although he beat nearly everyone else, never laid a hand on Kathryn.(143)

Analyzing Othello, Browne noted the shocked reaction of the characters to the report that Othello had struck Desdemona. He cited a critic, saying, "This is simply the rage of the coward; [the smothering] is an act of supposed justice."(144) This latter statement raises the tie between woman abuse and the traditional common law doctrine that adultery on the part of the wife provides provocation to reduce murder to manslaughter, if not to justify the killing completely. The only tragedy for Othello seems to be that he got it wrong.

C. A Jury of Her Peers as a Pedagogic Device

Since my first exposure to A Jury of Her Peers in 1985, I have joined the law and literature movement by using the story in both Criminal Law and our introductory course, Legal Decisionmaking: Judges, Legislators, Regulators.(145) I initially used the story in Criminal Law for review at the end of the homicide section, asking the students how the wife would fare under traditional common law homicide doctrine compared with the Model Penal Code. This exercise tested knowledge and application of existing doctrine and allowed minor tinkering with doctrine. It did not foster challenges to the basic assumptions underlying our criminal law system. It is difficult for outsiders to modify an existing system to reflect their different values. Using A Jury of Her Peers at the end of the homicide section was merely a catalyst for change from traditional common law doctrine to Model Penal Code expansions. I then began to use A Jury of Her Peers at the beginning of the homicide section and have considered using it at the beginning of the course.

In the fall of 1992, three Temple Law School professors decided to jointly present A Jury of Her Peers to our combined first-year Criminal Law and Legal Decisionmaking classes. The teacher who was an experienced criminal trial attorney emphasized existing legal doctrine and its application to the specific fact situation. I focused on the different fact perceptions of the women and men in the story and tried to stretch existing criminal law doctrine through the Model Penal Code either to reduce to manslaughter or to acquit on the basis of self-defense. The third teacher, who teaches Jurisprudence and Criminal Law, focused exclusively on Martha Hale's statement that the real crime was her failure to reach out to Minnie Foster Wright.(146) He raised the possibility of developing a system of criminal jurisprudence based on a duty of care rather than on punishment for affirmative bad acts. The contrast of approaches caused me to reevaluate my own. It was only after co-teaching the class with my two male colleagues that I understood how different female and male views could be of both facts and law. Both male teachers started from the assumption that the wife was an abused woman, but not physically abused. From my first exposure to the story, it was obvious to me that there had been physical abuse.

The facts we perceive and the conclusions we draw from them differ depending on our backgrounds and knowledge. Most women either have firsthand knowledge of woman abuse or are aware of its widespread nature. Because women have failed to tell their stories of physical abuse, men who do not engage in abuse are often unaware of it and those who abuse do not perceive it as wrong.(147)

Whether there was physical or psychological abuse is important because our legal system considers physical harm to be far worse than emotional harm and a more suitable subject for legal redress. Yet, the men who created our substantive criminal law made adultery on the part of the wife provocation to reduce murder to manslaughter, and, in some states, to completely justify a homicide. In other words, men were excused or justified for killing in emotional self-defense without being physically assaulted. Abused women who kill their abusers, however, do not have a claim of emotional self-defense. In 1916 as well as today, only a physical assault on Minnie Foster Wright would have justified claims of self-defense or provocation.

To overcome the biases built into our current laws and perceptions of facts, we must expand our students' perspectives at the beginning of law school. Otherwise, by the end of the first year both our methods of teaching and our teaching of existing doctrine result in fashioning intellectual clones who reflect society's biases.(148) Using the story early in a first-term course expands thinking and allows conceptualization of legal systems based on the participatory role of different perspectives.

Dr. Sandra Janoff documented the degree to which we brainwash our students.(149) She surveyed Temple Law School students the first day of classes and again at the end of the first year. She based her study on Carol Gilligan's theory of two different systems of moral reasoning, a primarily "male-rights approach" and a primarily "female-care approach."(150) During the 1990-91 academic year, 46.85% of the Temple student population were women,(151) slightly above the 42.5% national average,(152) and 21.95% of the Temple faculty were women,(153) below the 24.93% national average.(154)

Regardless of the number of women in a student body or on a law school faculty, we all operate within a system of substantive and procedural rules that were developed over centuries without female participation.(155) We teach in a style which presumes that the students are idiots who need to be dragged to the truth by an all-wise, all-knowing "God-Socrates."(156) We teach in large tiered classrooms where the teacher is spotlighted on a raised platform and where it is difficult, if not impossible, to change the hierarchical structure as all the chairs are bolted to the floor.(157) It should not, therefore, have come as any surprise to me, although it did, that by the end of the year we managed to warp the care perspective of our female students.(158)

According to Dr. Janoff, women entered law school more likely than men to respond to moral dilemmas with a care perspective. (159) All of their previous life and educational experiences had not managed to destroy this perspective. One year of law school did. Dr. Janoff found that the first year of law school had a substantial impact on women's moral reasoning but an insignificant effect on men's moral reasoning.(160) By the end of the first academic year there was no longer any significant difference between the genders in moral orientation.(161)

A recent study conducted at the University of Pennsylvania Law School by a group headed by Professor Lani Guinier, Becoming Gentlemen: Women's Experience at One Ivy League Law School,(162) confirmed Dr. Janoff's finding that law school altered women's attitudes(163) and disclosed another effect of legal education on women. "Despite identical entry-level credentials, [a] performance differential between men and women is created in the first year of law school and maintained over the next three "(164) The study reported alienation from law school by women,(165) even those who did well.(166) Like Susan Glaspell's women, women at the University of Pennsylvania Law School were viewed as queer(167) and experienced dissonance.(168)

For a long time, legal procedures have operated to exclude women and their perspectives from our legal discourse. In Legal Decisionmaking, I use A Jury of Her Peers after Commonwealth v. Welosky,(169) a 1931 decision of the highest court of Massachusetts. The statute in question allowed "[a] person qualified to vote . . . to serve as a juror."(170) Despite the passage of the Nineteenth Amendment in 1920 giving women the right to vote, the court interpreted the statute not to include women.(171) The fact that the criminal defendant was a woman was ignored until the court concluded that, even without any women on the jury, she "had a trial by the judgment of her peers."(172)

When I assigned A Jury Of Her Peers to the first-year Legal Decisionmaking class, I discovered that the story evokes, on both conscious and unconscious levels, very strong emotions. One day, before class, I heard three young women from the class arguing vehemently with five young men from the class about why a female Temple Law student would go to Doc Watson's, the local campus bar, alone on a Friday night. According to the female students, she would go there because she was taking a study break or because she wanted to see her friends. According to the male students, the only reason she would go there was to "get laid." One of the young women was told that because she had a boyfriend, she had absolutely no business being in Doc Watson's on a Friday night.

I concluded that A Jury of Her Peers had provoked this discussion, a frightening yet prototypical example of how the different perceptions of men and women can lead to sexual violence. If the male students believed that no female student would go to Doc Watson's alone on a Friday night but for the purpose of "getting laid," in their minds her mere presence at Doc Watson's constituted consent to sexual intercourse. If the female student, however, was there to take a study break or see her friends, the mere fact of her presence at the bar would not constitute consent to sexual intercourse.

I returned to the classroom and began the discussion by asking why a female Temple Law School student would go to Doc Watson's alone on Friday night. One male student promptly picked up his books and left. This was not proper law school teaching and had nothing to do with the reasons why he had come to law school.

The universality of Susan Glaspell's A Jury of Her Peers and its message regarding the exclusion of outsiders was dramatically made clear to me when I arrived to teach and lecture on feminist jurisprudence, sexual harassment, and woman abuse at the Faculties of Law and Criminal Justice of Queensland University of Technology in Brisbane, Australia, in early May of 1992. I assigned A Jury of Her Peers to an LL.M. class in Jurisprudence. The two male teachers and the entire class of male students assumed, as had my two male co-teachers at Temple, that there was psychological but not physical abuse of Minnie Foster Wright. I and most, although not all, women also assume physical abuse upon reading this short story. One student, who obviously could relate to Susan Glaspell's story, asked whether it took place in the American outback. At the same time I was using the story to teach in Australia, back home in America a jury that contained no African Americans had just acquitted police officers of beating Rodney King, and Los Angeles had exploded with riots.(173)

A normal reaction from a sensitive male at the end of a discussion of A Jury of Her Peers, and it came from a sensitive male professor in Australia, was: "But I would have to put myself in her position and view the situation the way she viewed it." Subordinate groups have always had to put themselves in the shoes of the dominant group in order to survive. To deal successfully with each other in an increasingly diverse society, all of us must recognize differences in perceptions and limit the ability of any one group to set only its perceptions and values in our legal system.

Susan Glaspell's story raises basic jurisprudential questions regarding the legitimacy of rebellion by those closed out of a legal system. If Minnie Foster Wright had gone to trial for murder in 1916 in Massachusetts, the state where Susan Glaspell first produced Trifles, she would have been judged by an all-male jury, charged by a male judge using substantive criminal law defined by men for men. The verdict would have declared her guilty of the highest degree of homicide, premeditated murder. It probably would not have made a difference whether women were fairly represented on the jury--if the jury had been composed of "a fair cross section of the community"(174)--because women jurors would have understood the evidence and would therefore have known that there was a motive for the killing. Given the substantive criminal law of the time and the dominance of the reasonable man standard, a jury that followed instructions would have had no option but to find her guilty of the highest degree of homicide. Her sole hope would have been based on jury nullification of the law or a hung jury.

Democratic governments should include a cross section of their communities in all of their lawmaking processes.(175) If we adjust our reasonableness standard to fit all of the diverse groups in our societies,(176) however, must we allow the male from a culture that requires submissive wives, daughters, and female relatives, to kill the woman who is not adequately subservient? Or do we have to recognize diverse viewpoints and at the same time establish and enforce standards that we as a society, if we can define ourselves as a society, have agreed are appropriate?

After using A Jury of Her Peers in my teaching, I felt the need to learn about the factors that had affected Susan Glaspell and enabled her to create a feminist masterpiece dealing with the difficult factual and legal issues involved in woman abuse. Susan Glaspell's story must be viewed in the context of the law and society in which she lived, both in 1901 when she covered the Hossack case and in 1916 when she produced Trifles and published A Jury of Her Peers.

During this time period, women did not make laws, including the criminal law. Women were not judges or legislators. Women had no part in the administration of law. Women were not police officers, prosecutors, judges, or jurors. Women believed the laws to be unjust but could not have operated within the democracy known as the United States of America in 1916 to change these laws. Women did not obtain the right to vote until 1920; in Massachusetts, the state where Susan Glaspell's play was first produced, they did not have the right to serve on juries until after 1931. Whatever rights came, they came far too late to help Minnie Foster Wright.

The struggles of nineteenth and early twentieth century American feminists which culminated in 1920 in the Nineteenth Amendment right to vote for women provide the background for Susan Glaspell's story. This Article will review the pre-1916 context, the context fairly contemporaneous with the story, and finally, more modern developments.


A. Jurisprudential Debates Affecting Women

Two jurisprudential debates influenced the struggle for women's rights during both the first and second waves of feminism: one is whether the world can be divided into a personal, private sphere and an opposing political, public sphere; the other is whether equality is defined by sameness or differences.

The personal, private sphere has, for our society and others, included home, marriage, and the family.(177) A zone of privacy is beyond the control of the state and governed by preexisting power relationships.(178) Political choices determine whether to allow a zone of privacy and, if so, how to define it.(179) Too many things important to women--our homes, our children, our families, our marriages--have been defined as personal, private, and beyond the control of the state.(180) As a result, abuse in the personal, private sphere was left to the inequitable physical, economic, and political realities of women's lives.(181)

Laws excluded women from the public sphere by denying them the right to participate in government through the vote and jury service.(182) Laws denied them the right to economic independence by prohibiting them from having an occupation or profession, or holding property, or maintaining a legal status independent of their fathers or husbands. In most families, women today still take primary responsibility for raising children, for nursing the ill or elderly, and for performing other unpaid services in the home.(183) Labeling these activities as personal and private perpetuates injustice and forces individual adjustments within the status quo.(184) Abuse within the home is not just an individual tragedy but a worldwide epidemic.

A related jurisprudential issue is the definition of equality.(185) The debate over this issue has focused on whether we should have an equality of sameness or an equality of differences.(186) We can and should have both; differences do not necessarily create problems or justify negative treatment. Like the readers of Susan Glaspell's A Jury of Her Peers, we must broaden our perceptions to appreciate diversity by understanding that bread is made up of different but equally important ingredients; that half-done things are incomplete.(187) Such appreciation does not grow out of or result in bias but rather reflects fairness and justice.

Similarly, lawyers and judges must supplement claims of rights with a recognition of responsibilities.(188) One scholar has said that "women are 'essentially connected,' not `essentially separate' from the rest of human life."(189) But all of our lives are relational, not autonomous. Law must acknowledge the multiple ways in which people are affirmatively responsible to each other. Community and interconnection must be quilted together with privacy.(190) These major jurisprudential debates underlie A Jury of Her Peers and the context in which the story was written.

B. The History of Legalized Woman Abuse: Roman, English, and Early American Law

Our law is based on English law, which in turn was based on Roman law. Patria potestas, paternal power, was the legal authority of the paterfamilias, the oldest male head of a Roman family, over all members of his family.(191) It included jus vitae necisque, the power of life and death.(192) According to historian Edward Gibbon, "[a] fiction of the law, neither rational nor elegant, bestowed on the mother of a family . . . the strange characters of sister to her own children, and of daughter to her husband or master, who was invested with the plentitude of paternal power."(193) The Roman wife was legally subject to the paterfamilias' power of life and death.(194)

Blackstone's Commentaries on the Law of England, which give a concise description of the legal status of women under traditional English law, was widely used in early nineteenth century America.(195) Just as the king was the head of the country and the murder of the king was considered an act of treason, so too were the husband the head of the household. The murder of the husband by his wife constituted petit treason.(196) an aggravated form of murder that carried the more severe punishment of being drawn and burned.(197)

Relying on the biblical account of Eve as created from the rib of Adam,(198) the common law considered a husband and wife as one, with the husband being the one.(199) Upon marriage, he gained control of all of her property and "all deeds executed, and acts done, by her, during her coverture, [were] void."(200) Exclusivity and related sexual jealousy of husbands gave rise to legal doctrines justifying or excusing the beating, or even killing, of wives suspected of infidelity. For example, Henry VIII executed two of his six wives for treason because of adultery.(201)

At common law, only two events constituted provocation that would reduce a homicide from murder to manslaughter: sustaining physical blows or witnessing the wife in the act of adultery. Lord Holt in 1707 stated in Regina v. Mawgridge(202) that "when a man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for jealousy is the rage of a man, and adultery is the highest invasion of property."(203) The notion of women, and particularly wives, as property to be jealously guarded is well documented in common law. Killing because of adultery was viewed as either an understandable response to extreme provocation or as a form of emotional self-defense. Obviously, women did not create this doctrine.

The English law of legalized wife beating was transplanted to America through Blackstone's reference to the doctrine of moderate chastisement. "For, as [the husband] is to answer for her misbehaviour, the law thought it reasonable to entrust him with the power to restrain her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or his children. . "(204) Moderation was encapsulated in the "rule of thumb," the right of a husband to beat his wife with a rod no thicker than his thumb.(205)

People have always vehemently attributed woman abuse to others, although it has existed among every class in every society. Blackstone himself disparagingly referred to the doctrine of moderate chastisement as popular with "the lower rank [as an] ancient privilege."(206) The oldest reported English case, decided in 1653, however, involved a member of the nobility.(207)

The American women's movement consisted of two waves: the first wave dating from the mid-nineteenth century through the passage of the Nineteenth Amendment in 1920; and the second wave starting in the 1960s.(208) Both waves were concerned about woman abuse.(209) The first wave grew out of the Abolitionist Movement and adapted its rhetoric to equal rights for women.(210) This wave manifested itself in both the Temperance Movement, which saw alcohol abuse by men as leading to the degradation of women and the destruction of the family,(211) and in the Suffrage Movement, which viewed the right to vote as the symbol of political and civil equality. The first wave was highly successful in passing two constitutional amendments: the Eighteenth Amendment prohibiting alcohol in 1919(212) and the Nineteenth Amendment giving women the right to vote in 1920. These major reforms were targeted at eliminating inequality. Despite failing to achieve all of its goals, the women's movement lost its focus in 1920 and remained dormant until the 1960s.(213) Prohibition was repealed and there was virtually no acknowledgement of the problem of woman abuse until the 1970s.

An examination of the history of the first wave's concern for woman abuse helps define the problem of woman abuse and the reasons for the failure of purported solutions. Attacks on woman abuse took multiple forms.(214) The major changes included: (1) reforming the civil law to allow an abused wife to legally gain her freedom from her abuser through divorce; (2) changing the criminal law to eliminate the legal right of a husband to beat his wife; (3) passing the Married Woman's Property Acts to allow married women to hold property and to sue and be sued in their own right;(215) (4) introducing Prohibition to eliminate wife beating attributed to drunkenness; and, most importantly, (5) gaining the right to vote, the symbol of full political equality that would empower women to address those problems that concerned them most, including abuse.

Law reform began with the right to obtain a divorce. By 1820, statutes allowed divorces, but only in the 1870s, after prolonged feminist lobbying, did most states add extreme cruelty as a ground for divorce.(216) Because the number of divorce suits filed by wives then skyrocketed,(217) there was a backlash against this reform; critics labeled it anti-family,(218) much as feminist reforms today are labeled anti-family.

To avoid divorces, the problem of wife abuse within the marriage had to be dealt with. Courts reexamined the marital exemption for assault in criminal cases and, by the 1870s, began overruling their own precedents to eliminate the rule of thumb.(219)

In 1824, the Mississippi Supreme Court decided Bradley v. State,(220) the first state supreme court case concerning wife beating. The court cited the rule of thumb to justify moderate chastisement of a wife without subjecting the husband to "vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned."(221) Common justifications for the rule of thumb were that it was the husband's duty to make his wife behave(222) and that it was necessary to draw a veil of secrecy and privacy over the dealings between husband and wife.(223) The use of the word chastisement rather than beating tells us that this form of beating, wife beating, was put in a special and lesser category.

In 1868, the Supreme Court of North Carolina, in State v. Rhodes,(224) reviewed a special verdict on an indictment for assault and battery. The jury found that the husband had "struck Elizabeth Rhodes, his wife, three licks, with a switch about the size of one of his fingers (but not as large as a man's thumb) without any provocation except some words uttered by her."(225) The court found the matter trivial and noted that "[t]he courts have been loath to take cognizance of trivial complaints . . . because the evil of publicity would be greater than the evil involved in the trifles complained of; and because they ought to be left to family government."(226) The opinion reflects the Roman law of family government, with the husband as the head of the family, as incorporated into English and American common law. The new notion is one of privacy at a time when privacy was not recognized as a right by American courts. Warren and Brandeis did not write their famous article, The Right to Privacy, until 1890.(227)

Also new was the North Carolina court's verbalization of formal equality between husband and wife. "We will no more interfere where the husband whips the wife, than where the wife whips the husband . . . ."(228) The court reached this conclusion even though women were no more the equals of the husbands in physical strength than they were legal equals.

In 1894, Bradley was finally overruled by the Supreme Court of Mississippi in Harris v. State.(229) The court, however, continued the theme that wife abuse existed only among the lower classes. It noted "a belief among the humbler class of our colored population of a fancied right in the husband to chastise the wife in moderation."(230) Such attitudes were not restricted to one area of the country. Epaphroditus Peck, a New Englander, commented in his anti-women's suffrage piece in the Yale Law Journal in 1915 that "[w]ife-beating was not a feature of the Puritan character."(231)

The period from 1870 to 1890 represented a high point of interest in violence against women during the first wave.(232) Woman abuse received heightened attention in Chicago and Boston. The Protective Agency for Women and Children, founded in Chicago in 1885, was the major nineteenth century organization aiding female victims of violence.(233) In addition to providing legal aid, the agency monitored courtrooms to ensure fair treatment of victims and provided financial assistance to help battered women secure property held in their husbands' names.(234) The agency referred homeless women victims to a shelter operated by the Women's Club of Chicago.(235)

In Boston, Lucy Stone and her husband, Henry Blackwell, published The Women's Journal.(236) )In 1876, Ms. Stone began reporting a weekly list of crimes against women, emphasizing wife beating and wife murder.(237) Noting that horses and dogs received more protection from abuse than battered wives, she called for a society to prevent cruelty to wives and supported protective legislation.(238)

The legality of the rule of thumb, eliminated under the criminal law by the end of the nineteenth century, was reborn in the civil law. The Married Women's Property Acts, passed in the mid-1800s, enabled wives to sue separately from their husbands, including the right to sue their husbands in tort.(239) When abused women tried to sue their husbands civilly for assault, the courts circumvented the Acts and held that the statutes did not authorize actions against husbands.(240) Relying on the biblical concept of Adam and Eve as one flesh, which the Married Women's Property Acts were supposed to eliminate, tort damages, including punitive damages, were denied to abused wives.(241)

For the first wave, "drinking was a veritable code word for male violence."(242) The Temperance Movement was highly successful in passing the Eighteenth Amendment in 1919 prohibiting the sale of alcohol. The success was short-lived; the amendment was repealed in 1933--the only Constitutional amendment ever repealed. The Temperance Movement was too narrow in attributing wife abuse only, or even primarily, to alcohol abuse. The prohibition of alcohol did not eliminate the problem of wife abuse.

The second wave of feminism has also focused on temperance. Battered women's shelters first opened in 1973 for the wives of alcoholics and were funded by Alcoholics Anonymous.(243) In the early 1970s, while working for a legal services corporation, I was assigned to a group client known as Philadelphia Women for Community Action. Their main goal was to close down dance halls and saloons. I initially found this somewhat strange, but, after working with the women, I became aware of the serious problems they and their children faced that were aggravated by alcoholism and drug abuse. As Prohibition proved, however, banning alcohol and drugs will not eliminate woman abuse. Substance abuse is a manifestation of wife abuse, not a cause.(244)

C. The Right to Vote: A Black/White Split

The Fifteenth Amendment in 1868 gave African American men the right to vote.(245) The Nineteenth Amendment in 1920, more than fifty years later, gave all women, including African American women, the right to vote. Aside from eighteen to twenty-one year-olds,(246) a category that crosses all racial, ethnic, and gender lines, African American men and all women are the only two groups in this country that needed specific constitutional amendments to grant them the vote, the most basic right of citizenship in a democracy.

The first wave of American feminism began at the 1840 anti-slavery convention in London when Lucretia Mott and Elizabeth Cady Stanton were denied delegate status and relegated to the balcony.(247) They realized they needed their own liberation movement and adopted the egalitarian political philosophy of the Abolition Movement.(248) American feminists drew comparisons between abused wives and female slaves who were threatened and beaten and argued that the status of the married woman "under the common law was nearly as degraded as that of a slave on a southern plantation."(249)

The Seneca Falls Declaration of 1848, the first wave's Declaration of Independence, stated that women were deprived of their "inalienable right to the elective franchise [and compelled] to submit to laws, in the formation of which [they] had no voice."(250) Among those laws, the Declaration specifically condemned the marriage contract in which a woman "was compelled to promise obedience to her husband [who had the power] to administer chastisement."(251) In 1854, Elizabeth Cady Stanton addressed the Joint Judiciary Committee of the New York Legislature on the specific issue of wife abuse.(252)

Feminists of both races united to advocate suffrage for African American men and all women.(253) They expected universal suffrage after the Civil War and felt betrayed when the Republican Party focused only on the "Negro's hour," meaning the vote for African American men.(254) Most abolitionists opposed efforts to include gender in the Fifteenth Amendment on the ground that supporting women's suffrage might endanger extension of the vote to African American men.(255) The opposition to women was so intense that, for the first time, the word "male" was introduced into the Constitution in Section 2 of the Fourteenth Amendment.(256)

Members of Congress were concerned that the Thirteenth Amendment's prohibition on slavery and involuntary servitude would alter the traditional relationship between husband and wife.(257) Senator Sumner, the chief proponent of the Thirteenth Amendment, assured the Senate this would not happen. Instead, the Amendment would extend to every man, regardless of race, the natural right to head a family under the existing laws of domestic relations.(258)

A major split occurred at this time: The Civil Rights Movement became a civil rights movement for African American men and the Suffrage Movement became a suffrage movement for white women.(259) African American women were not the primary beneficiaries of either movement.(260) The period "gave birth to an enduring syllogism of American political understanding: if the `Negro' was male, then the `woman' was white."(261)

The splits between white women and African American women that developed in the 1860s have not yet healed. We have categorized and subcategorized ourselves into groups that we and others have defined. The literature on woman abuse includes general articles that tend to be about white women from a white woman's perspective, as well as articles written by and concerning African American women, Latinas, Asian American women, lesbians, etc.(262) As stated by Margaret Burnham in her contribution to Toni Morrison's book, Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality, "black progress and progress for women are inextricably linked in contemporary American politics.... [E]ach group suffers when it fails to grasp the dimensions of the other's struggle. It will take careful strategies and strong coalitions to revise these setbacks."(263)

Both the right to vote and the right to serve on a jury are political rights that allow participation in the lawmaking and law-applying processes of our society. Women were excluded from both. The link between the right to vote and the right to serve on juries was made clear in 1872 when Susan B. Anthony along with fourteen other women voted in Rochester, New York, but then were charged and convicted by an all-male jury of violating a provision of the 1870 Civil Rights Act designed to protect African American males.(264) Susan B. Anthony denounced the all-male legal system that convicted her of a crime for voting and that denied her a jury of her peers.(265)

On July 4, 1876, at the centennial celebration of independence in Philadelphia, women were formally denied the opportunity to participate.(266) Nevertheless, women of the National Woman Suffrage Association paraded with the Declaration of Rights of Women. Susan B. Anthony read the section that included women's right to jury service:

The right of trial by jury of one's peers was so jealously guarded that States

refused to ratify the original constitution until it was guaranteed by the [S]ixth

[A]mendment. And yet the women of this nation have never been allowed a

jury of their peers--being tried in all cases by men, native and foreign,

educated and ignorant, virtuous and vicious. Young girls have been arraigned

in our courts for the crime of infanticide; tried, convicted, hanged--victims,

perchance, of judge, jurors, advocates--while no woman's voice could be

heard in their defense.(267)

Blackstone defined a jury as "twelve free and lawful men, liberos et regales homines."(268) Blackstone made clear that, at common law, man meant man and did not include woman. "Under the word homo also, though a name common to both sexes, the female is however excluded propter defectum sexus [because of the defect of the sex]."(269) There were two exceptions when a jury of women, of matrons, could be impaneled; when a widow claimed a suspicious pregnancy(270) or when a woman claimed pregnancy as a reprieve from execution.(271) In the latter case, however, she could be pregnant only once. The second time she could be executed "before the child [was] quick in the womb."(272) In America, women participated as jurors in the witch-hunting trials of the seventeenth and eighteenth centuries.(273)

The idea that one is entitled to a jury of one's peers comes from Magna Carta.(274) There is, on the one hand, the reality of Magna Carta, that it was written for a group of nobles who wanted to limit the power of the King vis-a-vis themselves, and the mythology of Magna Carta, that it was a bill of rights for all people. The mythology made its way into our Bill of Rights with the right to jury guaranteed in three constitutional amendments: the Fifth Amendment criminal grand jury;(275) the Sixth Amendment criminal petit jury;(276) and the Seventh Amendment civil jury.(277)

Jury service allows participation in our political process by individuals, and, through those individuals, by the groups from which they emerged. Individuals on trial at least have the opportunity to be tried by those who are their peers, by those who share, or at least have some understanding of, their realities and beliefs.(278) Juries made up of ordinary people were designed to protect ordinary people against governmental overreaching. Alexis DeTocqueville observed that the American jury is "as direct and as extreme a consequence of the sovereignty of the people as universal suffrage."(279) He believed that "the list of citizens qualified to serve on juries must increase and diminish with the list of electors."(280)

Serving on a jury is participation in our law-making processes on multiple levels. It exposes individuals to the law applicable to criminal and civil cases and allows them to know and question its appropriateness. It allows them to participate in the application of the law within our third branch of government, the judiciary. It allows them to make law through the concept of reasonableness, which runs throughout our law, including our homicide law. The standard of reasonable conduct is determined from the viewpoint of the reasonable person. Because each person believes s/he is the reasonable person, jury service enables us to apply our values to determine whether conduct is legal or not. Jurors tell each other stories during their deliberations. To reach a unanimous verdict, normally all jurors must be convinced of one point of view. When there are diverse viewpoints in the jury room, individuals have to work at listening to and hearing each other in order to reach a unanimous verdict. If diversity does not exist in the jury room, not all stories will be told and heard. Those who serve as jurors spread the knowledge of different stories within the jury room and within society when they return and, in turn, tell their stories of jury service to their friends and relatives.(281) In these ways service on a jury allows participation in our political processes.

A jury can also engage in law-making through jury nullification when the law as explained to them by a trial judge does not comport with their moral beliefs.(282) Jurors simply acquit in spite of evidence supporting a conviction.(283) Jury nullification rarely occurs in practice and is not sanctioned by law. However, in the late eighteenth and nineteenth centuries, constitutional theorists argued that a jury could lawfully refuse to convict a defendant charged under any law it deemed unconstitutional.(284) Susan Glaspell's women engaged in jury nullification by making a trial of Minnie Foster Wright impossible.

D. The Supreme Court's Early Decisions

The Supreme Court's post Civil War decisions denied women, under the Constitution, the right to join the legal profession(285) and the right to vote.(286) Moreover, the Court interpreted the District of Columbia's Married Women's Property Act to deny an abused woman the right to sue her abusive husband for assault.(287) These decisions were important in setting and reflecting the tone of the era.

In the first case before the United States Supreme Court involving women's rights, Bradwell v. Illinois(288) in 1872, Matthew Hale Carpenter argued for Ms. Bradwell's right to practice law on the ground that the Fourteenth Amendment's Privileges and Immunities Clause protected not only African American males but also women.(289) He argued for an equality that recognized both sameness and differences. He argued for sameness in claiming that "[i]ntelligence, integrity, and honor," not gender, should be "the only qualifications" for the practice of law.(290) He recognized differences in that

[t]here are many causes in which the silver voice of woman would accomplish

more than the severity and sternness of man could achieve. Of a bar

composed of men and women of equal integrity and learning, women might be

more or less frequently retained, as the taste or judgment of clients might

dictate.(291) While it is somewhat extraordinary to lose a case without an opponent--there was no opposing counsel--Mrs. Bradwell lost. Where internalized historical biases are strong, no spokesperson is necessary. In opposing women's rights, men can do so anonymously.

Writing for the Court in Bradwell, Justice Miller relied on the Slaughter-House Cases(292) to hold that state licensing of the practice of law was not controlled by U.S. citizenship.(293) Justice Bradley's infamous concurring opinion found that "the civil law, as well as nature herself [confined women to] the domestic sphere."(294) Relying on the common law rule "that a woman had no legal existence separate from her husband,"(295) he found the incapacity of a married woman to make contracts one of the reasons she was "incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor."(296) He thus used legal discrimination against women to justify more legal discrimination against women.

In 1874 in Minor v. Happersen,(297) Virginia Minor challenged, under the Privileges and Immunities Clause, the section of the Missouri Constitution that gave the right to vote to "[e]very male citizen of the United States."(298) Again, there was no opposing counsel, and yet, Ms. Minor lost. The Court reasoned that because the right to vote was not coextensive with citizenship in any state,(299) it could refuse to interpret the Fourteenth Amendment to apply to women's right to vote.(300) The Court concluded that the Fifteenth Amendment would have been superfluous if the Fourteenth Amendment had given all African American male citizens the right to vote.(301) Therefore, the Fourteenth Amendment certainly did not give women the right to vote. The franchise had been extended to African American men and was being expanded to ever increasing groups of white men by the elimination of property qualifications,(302) but Minor did not deal with "the contradiction inherent in a democracy that legislated broad restrictions on the right to vote."(303)

The Court's treatment of African American men under the Constitution in Strauder v. West virginia(104) and Neal v. Delaware(305) was substantially different from its treatment of women. In 1879, in Strauder, an African American male convicted of murder challenged the constitutionality of a statute that allowed " [a]ll white male persons who [were] twenty-one ... and citizens ... to serve as jurors."(306) The question was not whether the African American male defendant had a right to a "jury composed in whole or in part of persons of his own race and color, [but whether] all persons of his race or color may be excluded by law, solely because of their race or color."(307)

The Court proclaimed the purpose of the Fourteenth Amendment to be "securing to a race recently emancipated . . . all the civil rights that the superior race enjoy."(308) It condemned discrimination based on race, however, regardless of whether such discrimination was against African American men or traditionally privileged white men.(309) In dictum, the Court prohibited racial and ethnic discrimination against all men, Black and white, as well as "all naturalized Celtic Irishmen."(310)

The Court in Strauder understood the implications of excluding a group from jury service. Exclusion placed "a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice that the law aims to secure to all others."(311) The Court understood that prejudices "sway the judgment of jurors, and ... operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy."(312)

The Supreme Court, however, did not understand prejudice against women. States could prescribe the qualifications of jurors, and "confine the selection to males."(313) Thus, the Fourteenth Amendment condemned discrimination against all men, including "naturalized Celtic Irishmen,"(314) at the same time that it perpetuated discrimination against all women. Strauder's dictum has influenced our law to this day.

Neal, decided in 1881, involved both de jure and de facto exclusion of African American men from jury service.(315) The Court dealt with the same basic issue that was later raised in the women's jury cases--whether a constitutional amendment granting suffrage, in this case the Fifteenth Amendment, automatically made the members of the group who were granted suffrage, African American men, eligible for jury service.(316) The 1831 Delaware Constitution limited suffrage to "free white male[s] " and an 1848 Delaware statute limited jury service to " sober and judicious persons" qualified to vote.(317) The Court found that the Fifteenth Amendment right to vote had automatically changed the Delaware Constitution and statute, and thus, there was no de jure discrimination.(318) There was, however, de facto discrimination. The Chief Justice of the Delaware Supreme Court believed that African American men had always been excluded from juries because " 'the great body of black men residing in this state are utterly unqualified by want of intelligence, experience, or moral integrity to sit on juries.' "(319) The United States Supreme Court held this exclusion to be state action in violation of the Constitution.(320)

The Supreme Court interpreted state statutes in light of constitutional changes in favor of African American men in Strauder and Neal, but based its 1910 decision in Thompson v. Thompson(321) on a strained anti-feminist interpretation of the District of Columbia's Married Women's Property Act. The Act gave "[m]arried women . . . power to . . . sue separately . . . for torts committed against them, as fully and freely as if they were unmarried."(322) The question was whether an abused wife seriously injured by her husband in repeated assaults could bring a tort suit against him for assault and battery.(323) The majority, stating that the wife had remedies in criminal court and divorce court, denied a civil tort remedy.(324) According to the majority's privacy argument, allowing such a suit would "open the doors of the courts to accusations of all sorts of one spouse against the other, and bring into public notice complaints for assault."(325) In addition to this privacy argument, the majority made a formal equality argument that recognizing such a cause of action would allow complaints "by husband against wife or wife against husband."(326) Congress had not expressed its intent to allow such civil suits in terms of "irresistible clearness."(327) Married women could sue anybody except their abusive husbands.(328)

The dissent, written by the first Justice Harlan, with whom Justices Holmes and Hughes joined, did not find "any room whatever for mere construction--so explicit are the words of Congress."(329) Only from the dissent do we learn that there were seven counts of assault and that the wife was at the time of the assaults "pregnant, as the husband then well knew."(330) The Married Women's Property Acts were supposed to free women from the control of their husbands, but the traditional doctrine of interspousal immunity was resurrected and used to block effective legal action by abused wives. The oneness of Adam and Eve and the consent that was interpreted to be part of the marriage contract were used to prohibit women either from suing civilly for assault or from filing criminal complaints for marital rape.(331) Interspousal tort immunity, developed in cases where women were assaulted and beaten,(332) remained the majority rule until the 1970s.(333) The rationale, again based on privacy, was "that litigation might disrupt family harmony or the sanctity of the conjugal bond."(334) In 1989, two states retained full interspousal tort immunity and six retained partial immunity.(335)

E. The Vote Connected to Jury Service

The Supreme Court's denial of the vote to women in Minor v. Happersett(336) mobilized the Suffrage Movement. After winning the vote in a number of states, suffrage was finally achieved nationally with ratification of the Nineteenth Amendment in 1920. The literature surrounding the debate on the passage of the Nineteenth Amendment made it clear that the amendment meant more to the Suffrage Movement than the right to vote; it was viewed as an equal rights amendment which would ensure women's full equality in the political processes of this country.(337)

A 1913 article supporting the vote for women(338) is shocking in its modernity. The author emphasized economics for both the woman working in the home concerned about the welfare of her family and the wage-earning woman in industry. She joined the equality debate regarding sameness and differences by recognizing that women have the same self-interest shared by all wage earners and a special interest in the home and family. Analogizing to two brothers, one a plumber and the other a small farmer, she argued that "each must represent his own business interests,"(339) just as women must represent their own interests separate from men. The vote represented power and "the means through which I make my will count in the decision of public questions that affect my interests."(340) These ideas, with counterarguments, appeared in the legal literature surrounding the passage of the Nineteenth Amendment and the discussion of the most immediate legal issue to arise after passage of that amendment, the right of women to serve as jurors.

There are two contrasting understandings of the Nineteenth Amendment: a narrow view that it applied only to the franchise, and a broad, "emancipatory" view that it "represented the symbolic and substantive assertion of women's rightful place as men's equals, and as such had ramifications beyond the franchise."(341) In Neal v. Delaware(342) the Supreme Court found that the Fifteenth Amendment automatically extended jury service to African American men.(343) Once women achieved the right to vote, the issue arose as to whether they too were eligible to serve on juries. The courts had to interpret the scope of the Nineteenth Amendment in the women's juror cases.

1. The Law Reviews

The law review articles of the time, roughly from 1913 to 1923, debating women's suffrage and the right to sit on juries, provide the context and rhetoric to which Susan Glaspell responded with A Jury of Her Peers. Given Susan Glaspell's life in New York City's Greenwich Village and Massachusetts' Provincetown, she was at the forefront of ideas about women's rights.

A student note in the 1920 Virginia Law Review reported that the supporters of the Nineteenth Amendment expected "the amendment to vest women with all the rights, privileges and duties that men now enjoy and perform."(344) The note acknowledged the rule that construction of the amendment should be "in accordance with the expectations of . . . supporters"(345) but drew a purported distinction between rights guaranteed by the Constitution and duties imposed by legislature.(346) Accordingly, the right to be tried by a jury was fundamental, but the vote and jury service were mere duties.(347) Such reasoning made the right to be tried by a jury more important under our Constitution than the right to vote or the right to serve on a jury.

The note saw no parallel between the post-Civil War African American male jury cases and the post-Nineteenth Amendment women's jury service cases.(348) The male students (the University of Virginia Law School did not admit women at that time)(349) drew a distinction between exclusion from juries made in "good faith and . . . the best interest of the community [and exclusion based on] prejudice."(350) Women were excluded for the good of society, not because of prejudice. Displaying some arrogance, they concluded, "She may not have the right to be tried by a jury of her equals, but she has the unique privilege of being tried by a jury of her admiring inferiors."(351)

Emmet O'Neal, writing on "The Susan B. Anthony Amendment" in the Virginia Law Review in 1920,(352) exhibited the racism that surrounded the debates regarding the Nineteenth Amendment and that had earlier led to the passage of Jim Crow laws:

The addition of this mass of negro women to the electorate, most of whom would be wholly lacking in the character and qualifications which alone fit a citizen for the art of self-government, would unquestionably menace the domination of the white race, and might restore those deplorable conditions from which we have happily escaped.(353)

Emmett O'Neal seriously considered advocating "illegal and wrongful action on the part of our registrars" to prevent women from voting, but decided that ultimately such a solution "would only be temporary."(354) The Nineteenth Amendment, like the Fifteenth Amendment, did not expressly confer the right to vote but rather prohibited denial on the basis of sex.(355) Therefore, he recommended the achievement of the same exclusionary results through indirect means such as the poll taxes and occupational prerequisites which would impact more heavily on women and African Americans.(356)

A 1921 student note in the Columbia University Law Review (the university did not admit women in its law school until 1928)(357) concluded that men could be geniuses and women, at best, only mediocre:

The fact that men have excelled women in the great scientific, artistic, and general achievements of the world is probably due to the 'greater variability (divergence from the average) within the male sex,' and to the great 'strength of the fighting instinct in the male.' Thus, except for heights reserved for geniuses, women, if similarly trained, could generally compete on an equal footing with men. In any event, efficiency would not be lessened by such competition. Since women would not be subsidized or protected, they would only prevail if they were actually more competent.(358)

The male student authors opposed compulsory jury service because "[m]ore women are the sole caretakers of their home than men are the sole managers of their business."(359) However, the authors supported voluntary jury service, noting that at common law a femme sole but not a femme covert could transact business and hold property.(360) The student authors arrogantly concluded that "a woman's intellectual equipment is not altered by her matrimonial status."(361)

A few authors were willing to take a strong position advocating the participation of women as jurors. In an argument reminiscent of Susan Glaspell's half-done things, Case and Comment found "[a] mixed jury would bring to the consideration of the issues submitted a deeper understanding and a broader general experience than could be expected from a jury of either sex, unaided by the other."(362)

In a widely reprinted address, Judge R. Justin Miller argued both sameness and differences.(363) He recognized that when women served on juries the results were "about the same" as before they began to serve,(364) but he maintained that women could have a substantially different perspective on problems in the administration of justice. He concluded "it is far more 'for the good of the community' that her cooking and dish-washing should suffer temporarily . . . than that we continue forever to plow along with the medieval implements in such discouraging fields as that of criminology."(365)

Judge Miller argued against voluntary exemption on the basis of gender because statistics proved that women given such an option would exercise it automatically.(366) He found it "illogical"(367) and pointed out the problems that would arise if an automatic exemption were equally applied to men.(368) If sickness and childcare were the main reasons for exempting women, he would leave these decisions to the discretion of the trial judge.(369) He argued for the repeal of automatic exemptions for women and for an enlargement of the grounds on which people could be excused by a court.(370)

The February 1923 issue of the Massachusetts Law Quarterly dealt with women's rights generally and the right to jury service specifically.(371) The issue presents a snapshot of the attitudes of the time regarding the position of women in the legal community. B. Loring Young, Speaker of the Massachusetts House of Representatives, presented the narrow interpretation that the Nineteenth Amendment only gave women the right to vote and "did not specifically grant" them the right to hold public office or to serve on juries.(372) He favored "important pieces of remedial legislation [such as] giving to wives equal right with husbands in the appointment of testamentary guardians for their children [and] allowing married women in certain cases to have a separate domicile for purposes of voting and registration."(373) He opposed the "blanket equality" of an equal rights amendment, fearing that it would "deprive [women] of the protection and watchful care which have made Massachusetts notable among the states of the Union."(374) The all male Boston Bar Association rejected equal jury service in a referendum vote of 353 to 65.(375)

Jennie Loitman Barron, former president of the Massachusetts Association of Women Lawyers, argued in favor of women jurors.(376) First, she made a sameness argument that a woman could not receive a trial by an impartial jury of her peers when women were not eligible as jurors.(377) Second, she recognized an equality of differences. "Mixed juries would bring to the consideration of issues submitted a deeper understanding and a broader general experience than could be expected from a jury of either sex alone. Men and women are equal, but not identical, and women have a special contribution to make to society."(378) These arguments, similar to Glaspell's half-sifted and half-unsifted flour for-bread-ready-to-be-made metaphor, equated sameness and differences in a sophisticated manner.

Ms. Barron argued for equal and compulsory jury service for women as a civic duty and supported this proposition with answers to purported practical problems raised by opponents. She dismissed objections to keeping jurors overnight with the observation that it should not be a problem in a society that had "the permanently embarrassing institution of the sleeping car."(379) She dealt with the toilet issue by noting that courthouses could, with little additional expense, accommodate women and concluded, "It would be as absurd to argue that women should not serve as jurors because of lack of accommodations, as it would be to argue that the Supreme Court should be abolished because . . . the facilities are not exactly what they should be. "(380)

The response to Ms. Barron came from yet another anonymous male, identified only as a member of the Massachusetts Bar.(381) The critic relied on the purported distinction between "recognizing any RIGHT [and] imposing a burdensome and often disagreeable DUTY" on women.(382) He acknowledged two advantages to having women on juries: an increase in the number of eligible jurors, and "the educating force of actual observation of the administration of justice and the responsibility of taking part in it."(383) He attempted to negate these strong arguments with the toilet problem, the disturbance of home life argument, and the paternalistic protection of women from squalid matters argument. The critic believed it was:

not . . . wholesome to compel women to listen, argue, and squabble with

eleven other mixed jurors for days and nights over the disagreeable or

disgusting details of many civil and criminal cases.... [T]he strain of such work

would be very bad for expectant mothers and the forced absence from home

of many women would do incalculable harm in one way or another.(384)

These law review articles reflected the views prevalent in American society when Susan Glaspell wrote A Jury of Her Peers. In 1916, women were closed out of lawmaking in every relevant way with no right to vote, no right to hold public office, and no right to serve on juries.

2. The State Courts

Prototypical of decisions that interpreted the Nineteenth Amendment narrowly to apply only to the right to vote and not to the right to serve on juries was Commonwealth v. Welosky.(385) The highest court of Massachusetts, the state in which Glaspell produced her play in 1916, decided in 1931 that the women of Massachusetts had no right to serve as jurors.(386) Nevertheless, the court pronounced that the woman criminal defendant "had a trial by the judgment of her peers."(387)

The court actually had decided these issues earlier, in 1921, when the influence of the anti-feminist arguments espoused by some of the writers in the 1921 Massachusetts Law Quarterly was more direct. Massachusetts is one the few states that has a provision allowing advisory opinions by its highest court.(388) In 1921, the Massachusetts House of Representatives requested an opinion from the Supreme Judicial 'Court of Massachusetts on a bill that would have made women eligible for jury service. The court decided that under the constitution and laws of Massachusetts as well as the United States Constitution, women had no right to serve on juries but that legislation could make them eligible.(389) Thus, without any opportunity for adversarial argument, the Supreme Judicial Court predetermined the issues later raised in Welosky.

The Massachusetts statute at issue in Welosky was similar to the one the United States Supreme Court interpreted in Neal to extend the right to serve on juries to African American men after passage of the Fifteenth Amendment. The statute at issue in Welosky read, "A person qualified to vote . . . shall be liable to serve as a juror."(390) The female criminal defendant argued that because the Nineteenth Amendment to the United States Constitution had given women the right to vote, women should serve as jurors.(391)

The court admitted that the term "person" normally included women as well as men but decided that "person" as used in the statute did not.(392) It based this conclusion on the intent of the framers of the Massachusetts statute; however, there were conflicting possible interpretations as to the intent of the legislature when it first passed the statute in 1784. The framers meant to allow juror eligibility to expand as the franchise expanded,(393) but the court found it "unthinkable that [they] had any design that it should ever include women within its scope."(394) The framers never envisioned that many people would be able to vote, including African American men. Yet, when the Fifteenth Amendment was passed, the Supreme Court of the United States in Neal held that a similar statute should be interpreted to include African American males.(395) The Supreme Court's method of statutory interpretation in Neal was consistent with the often-cited maxim that statutes should be construed to avoid having to reach a constitutional issue.(396) Massachusetts' highest court, not following the maxim, reached the constitutional issue and drew a distinction between all men and all women because "[t]he Nineteenth Amendment to the federal Constitution conferred the suffrage upon an entirely new class of human beings."(397) The change was "radical, drastic and unprecedented. "(398)

The Massachusetts court, in Welosky, distinguished Strauder and Neal on the ground that the post-Civil War Amendments were intended to give rights to only the male members of "the colored race".(399) The Massachusetts court dismissed later United States Supreme Court decisions that extended the interpretation of the Equal Protection Clause beyond the classification of African American men.(400) It also relied on the toilet and disturbance of home life arguments.(401)

The court tried to distinguish the situation of women in Massachusetts as citizens with property and civil rights from that of African American men who had been enslaved. The court proclaimed that "[w]oman has long been generally recognized in this country as the equal of man intellectually, morally, socially. Opportunities in business, and for college and university training have been freely open to her."(402) Amazingly, these statements came in 1931 from the highest court of a state that houses Harvard Law School, which did not admit women until 1950.(403)

The court thus argued equality of women on one page and justified discrimination against women on the next based on the United States Supreme Court's decisions upholding unequal treatment of women: Bradwell v. Illinois, denying women the right to practice law; Minor v. Happersett, denying women the right to vote; and Mueller v. Oregon, denying women the right to contract to work more than a limited number of hours.(404)

Not all states took a narrow view of women's right to vote.(405) Nevada amended its state constitution to give women the right to vote before passage of the Nineteenth Amendment.(406) Its constitution excluded from juries persons who were not qualified electors. The Supreme Court of Nevada in 1918, in Parus v. District Court,(407) looked to Strauder and Neal as appropriate models for its interpretation of the effect of the constitutional enfranchisement of women on their right to serve on juries.(408)

Parus involved a challenge to women sitting on grand juries. The Supreme Court of Nevada noted that a "[w]oman's sphere under the common law was a circumscribed one"(409) The Court, however, interpreted its state constitutional provision granting the right to vote to women as a broad equal rights amendment. It found that

[t]he spirit of the constitutional amendment silences such an assertion [that a woman could be] deprived of the privilege of sitting as a member of an inquisitorial body, the power, scope of inquiry, and significance of which affects every department of life in which she, as a citizen and elector, is interested and which she is a component part.(410)

Unlike the Massachusetts Court in Welosky thirteen years later, the Nevada court refused to draw distinctions between African American men and all women.(411)


The studies, the Statistics, the names for woman abuse finally exist to provide the documentation for Martha Hale's statement to Mrs. Peters: "`[W]hy do you and I understand? Why do we know-what we know this minute?'"(412) As with most cutting-edge issues, the reality of women abuse is not recognized in existing legal sources. To understand the scope of woman abuse and Some modern efforts to respond, we must look to current news reports and sociological, criminological, governmental, and medical literature.

A. Statistics & Patterns

No matter what I teach, people are always getting beat up. In 1970 I taught Juvenile Law and included in my photocopied materials a section on battered child syndrome, first identified as a major problem by Kempe in his classic article in the Journal of the American Medical Association in 1962.(413) Woman abuse was only later recognized as a major social problem. It was rediscovered after Alcoholics Anonymous opened the first modern shelters for abused women and their children in 1973.(414) In 1974, Scream Quietly or the Neighbors Will Hear, by Erin Pizzey, the first book on battered wives, was published in England.(415) One year later, the National Organization for Women proclaimed marital violence a major issue and established a National Task Force.(416)

By 1985 the Surgeon General of the United States was warning that violence was a major public health risk to adult women in the United States.(417) The incidence and degree of violence in the United States against women by their husbands and male intimates are currently, and probably have always been, of epidemic proportions.(418) Abuse is difficult to measure because it occurs in private and women are reluctant to report it because of shame and fear of reprisals.(419)

Our mythology of safety in the home and danger from strangers is true for men but not for women. In State v. Kelly,(420) a 1984 case of an abused woman who killed her abuser, the New Jersey Supreme Court wrote that "the American home, once assumed to be the cornerstone of our society, is often a violent place."(421) The Senate Judiciary Committee in 1992 noted that almost 20% of aggravated assaults reported to the police every week were in the home.(422) It also exposed the myth of violence by strangers. Women are six times more likely than men to be the victim of a violent crime committed by an intimate.(423) The committee concluded, "The number of women attacked by those they loved, those they knew and those they had just met far outweighed the number of women attacked by strangers."(424)

The homicide statistics on spousal killings are frighteningly high. A July 1994 report by the Department of Justice, Murder in Families, found that 6.5% of all murder victims were killed by their spouses.(425) Husbands killed wives in 60% of these cases and wives killed husbands in 40%(426) Only in this one category, women killing husbands or male intimates, does the rate of female violence begin to equal the male rate. In all other instances, it is substantially lower.(427) Many of these homicides are self-defense killings not adequately identified or dealt with by our legal system.(428) The recent large number of grants of clemency to battered women who killed their abusers seems to recognize this fact.(429)

A January 1994 study by the Department of Justice provides answers to the question "'why didn't she leave?'" and supports the conclusion that abused women who kill do so in self-defense.(430) Police attitudes and responses to woman abuse have improved, but police are slower to respond and less likely to make a formal report if the offender is known to a female victim than if the offender is a stranger.(431) Without adequate police protection, women must rely on their own resources. Women are twice as likely to fight back physically when attacked by an intimate or other family member than when attacked by a stranger.(432) Women are, moreover, twice as likely to be injured by an intimate than by a stranger.(433) Finally, women are more likely to receive injuries requiring medical care when attacked by an intimate than by a stranger.(434)

Women learn that violence will be repeated. Men who kill their female partners have a history of violent behavior. Roughly 70% to 75% of male domestic homicide offenders have been previously arrested and about 50% have been convicted of violent crimes.(435) A "Kansas City study of spousal homicides found that in [90%] of the cases the police had been called to the home a median of 5 times in response to `domestic disturbance' calls."(436)

Women try to eliminate the abuse. An early researcher, Lenore Walker,(437) has been criticized for her theory that abused women suffer from "learned helplessness," that they suffer their abuse in silence without seeking help or escape.(438) Abused women increase, rather than decrease, their help-seeking over time and become more assertive rather than more passive. A recent study of women who obtained court protective orders showed that abused women sought to eliminate the abuse in multiple ways, including talking to the abuser, consulting family and friends, calling the police, seeking counseling or legal advice, and leaving the abusive partner.(439)

Leaving is dangerous and can be deadly. Only recently has the name "separation attack" been given to the phenomenon that women are most at risk at the point of or after separation from their abusers.(440) Department of Justice statistics from 1973 to 1987 showed that 75% of women who Reported battering were divorced or separated.(441) Separation attack partially explains the reluctance of women to leave their abusers. Recent studies have found a high incidence of suicide among abused women, a response probably caused by the entrapment they experience in abusive relationships.(442) If a woman cannot leave, death can occur, either hers or her abuser's.(443)

Just as Blackstone believed the rule of thumb was only popular with the lower ranks, there is a popular misconception that women who are abused are poor and/or women of color.(444) To the contrary, abuse cuts across class, racial, and ethnic lines.(445) Women living in central cities, suburban areas, and rural locations experienced similar rates of violence committed by intimates.(446)

There are patterns that explain why it is difficult for women to leave abusive relationships. An early study found that male-dominant marriages had the highest, and egalitarian marriages the lowest, rates of violence and that full-time house wives experienced a higher rate of wife beating than women working outside the home.(447) Recent studies confirm that women with less education and lower family income levels are more likely to be victimized by intimates than women who graduate from college and who have higher incomes.(448) Women with little or no money and few marketable skills have nowhere to go. Society has not provided options for these women. Highlighting our failure is the fact that the United States has three times as many animal shelters as battered women's shelters.(449) Jealousy, including sexual jealousy, is a major factor in woman abuse.(450) Men who beat and kill "their women" try to justify their acts by alleging the women were unfaithful.(451) Marital rape is a form of woman abuse that reaffirms sexual control.(452) High percentages of women who have been abused report that they have also been sexually assaulted.(453)

Jealousy also exhibits itself as exclusive possessiveness over a woman's time, attention, and activities. As the abuser exerts his power and control, the abused woman often loses interest in activities she used to enjoy, becomes less involved with family and friends, and hides the fact that she is being hurt.(454) She becomes isolated within the home.

Jealousy is a part of a context that includes multiple control tactics. In general, violent husbands "handle all the money."(455) Without money it is difficult, if not impossible, for a woman to leave an abusive situation. Abused women tell similar stories of having to account for money doled out by their abusers. They attribute this control tactic to the "man's fear [that she is] saving money in order to leave him."(456) Susan Glaspell's description of Minnie Foster Wright's isolation and her husband's control of finances--"Wright was close"--aptly depicts the type of controlling behavior exhibited by an abusive male.

There are strong indications that women, given a choice between death, either their own or their abusers', and separation, will choose to leave. The general female rate of homicides of husbands and male intimates has fallen in recent years. One study attributed the decline to the availability of additional resources.(457) Rates were significantly lower in states with good domestic violence legislation and more resources for intervention on behalf of abused women.(458)

There are racial differences in the rate of domestic homicides. One study of such killings focused on female victims, ages eighteen to thirty-four, from 1976 to 1992.(459) Forty-eight percent of the cases were cases of women killed by male intimates or ex-intimates.(460) The rate of domestic homicides among whites was stable, but there was a drop in the rate of domestic homicides against Black women.(461) A Department of Justice report, focusing on large urban counties in 1988, found that a higher percentage of Black women than white women killed husbands or male intimates.(462) The two studies are not necessarily inconsistent. More white women than African American women may have resources available that enable them to leave and avoid death. African American women may have to more often face the choice of kill or be killed. Thus, it is conceivable that at the same time the rate of African American males killing their female intimates has fallen, the rate of African American women killing their male abusers has risen.

Woman abuse includes attacks on pregnant women and abused women's children. Pregnant women are a particularly high-risk group for abuse.(463) The wife in Thompson v. Thompson,(464) the key Supreme Court decision upholding the doctrine of interspousal tort immunity, was pregnant at the time of the assaults.(465) There is a high correlation between woman abuse and child abuse. One study found that "between 70% and 80% of children who live in households where physical confrontation occurs will directly witness the violence or its consequences."(466) There is at least a 30% to 40% overlap between witnessing woman abuse and being abused directly.(467) Children who witness their mothers being abused may suffer negative consequences comparable to those of children who suffer physical abuse themselves.(468)

Abused mothers whose children have also been abused by male batterers have been prosecuted for child abuse, neglect and manslaughter, on the theory that they failed to act on a duty to protect their children from abuse.(469) It is hard to justify punishing mothers who are battered along with their children when a primary reason for failing to act, including failing to leave, is fear of severe, violent retaliation against them and/or their children.(470) Abusive husbands also use the threat of custody battles to prevent their wives from leaving.(471)

B. Newspaper Reports on Known And Unknown Women

Recent newspaper reports document domestic violence among both the knowns and unknowns of American society. President Clinton's mother suffered it.(472) Miss America 1992, Carolyn Suzanne Sapp, played herself in a movie about her intimate relationship with a professional football player "who took out his frustrations with his fists."(473) Peter Martins, the ballet master and head of the New York City Ballet, was charged with third-degree assault on his wife, Darci Kistler, a principal dancer with the company.(474) A spokesperson for the ballet company dismissed the assault as a trifle, stating "we see this as a personal matter between two people who work here."(475) A member of the ballet's board of directors added, "It has nothing to do with his competency or his support in the ballet community."(476) The strong overlap between woman abuse and sexual harassment appeared in the case of Senator Robert Packwood. When a reporter for The New York Times wondered whether Senator Packwood was guilty of sexual harassment or was merely "a victim of changing mores,"(477) I responded that he was guilty of twenty-four counts of criminal assault.(478)

A veil of silence surrounds woman abuse. Sociologist Margaret Abraham was speaking of South Asian women when she said, "a woman is the guardian of the family honor. If she were beaten up and complained about it, she would be bringing shame on the family."(479) Every group has used privacy to limit discourse about abuse within the group and the "honor of our community" to prevent discourse in the society at large.

Abuse cuts across all lines, but women from different ethnic, racial, and religious groups are most comfortable when receiving assistance from members of their own group. Gracie Perez, the Executive Director of a violence intervention program for Hispanic women said: "[Hispanic women] feel a certain amount of discomfort telling their very intimate situation to someone they feel no connection to."(480) We need hot lines and counselors who speak different languages and programs and shelters attuned to different cultural norms.(481)

Current resources are not sufficient. During a nine-day period on Long Island, New York, three women who had obtained protective orders were shot and killed by their former or estranged husbands who in turn killed themselves.(482) Danielle Almonor, a federal probation officer, was shot dead in the back of her head by her estranged husband, Max, a state parole officer, as they sat on a bench in Brooklyn Family Court waiting for their case to be called.(483)

Woman abuse transcends generational lines. The "Spur Posse," a group of California high school athletes, competed on sexual conquests, some of which included rapes of young girls. One father claimed the girls were all promiscuous and "[n]othing my boy did was anything that any red-blooded American boy wouldn't do at his age."(484) Teenage boys repeatedly have sexually attacked girls in New York City's swimming pools with "the whirlpool," a ritual in which boys surround girls and assault them.(485) The Superior Court of the District of Columbia supplements its treatment plan for adults who batter their female intimates with a program for boys from ages thirteen through eighteen.(486) In addition, Michigan State University opened the first women's shelter for abused college students.(487)

Woman abuse in the military has made headlines in recent years.(488) At the September 1991 Tailhook convention of retired and active Navy and Marine Corp aviators, eighty-three women were assaulted or molested, most of them by male military personnel who lined the hallway on the third floor of the Las Vegas Hilton and grabbed women who tried to pass.(489) Although 140 men were implicated in the scandal, the charges against seventy were dropped almost immediately for lack of evidence.(490) The three cases that went to trial were all dismissed because the mishandling of the investigation led to a lack of evidence. The Pentagon fined or otherwise disciplined approximately fifty other servicemen for their involvement. Admiral Frank B. Kelso II, the Chief of Naval Operations, attended the Tailhook convention, but denied witnessing any misconduct and claimed that he had not tried to manipulate the subsequent investigation to shield himself from blame. Despite the fact that a Navy judge accused Admiral Kelso of lying about his involvement in the Tailhook scandal, the Senate Armed Services Committee promoted Admiral Kelso and allowed him to retire with four stars, thereby increasing his pension by about $1400 a month and indicating vindication of his role in the Tailhook events.(491) Although the military mishandled the Tailhook investigation, some of the women who were sexually assaulted at the Tailhook convention collected $1.7 million in compensatory damages and $5 million in punitive damages against the Las Vegas Hilton where the convention took place.(492)

Woman abuse was not recognized in the death of Lt. Lisa Bryant, who was shot four times in the chest and face at Fort Bragg, North Carolina, where she was serving in the Army Reserve Officer's Training Corps Cadet Command. The New York Times described the non-commissioned officer who killed Lt. Bryant as "a rejected suitor who was said to have grown irate over her refusal to dance."(493) This terminology is problematic because the two had never met before the night of the murder.(494) Indeed, the use of the term "rejected suitor" suggests sexual infidelity as a justification for murder, even between complete strangers.

The most celebrated recent cases involve the Bobbitts and the Simpsons. On June 23, 1993, Lorena Bobbitt cut off her sleeping husband's penis with a kitchen knife and, minutes later, threw it into a field while driving to a friend's home.(495) This battered and sexually abused wife cut off the object that had caused her repeated pain during multiple marital rapes.(496) The case engendered strong reactions from both men and women and led to a barrage of newspaper accounts, editorials, and jockes.(497) The New York Times first reported with a half-page story entitled "Artful Surgery: Reattaching A Penis," which gave, in excruciating detail, a description of the operation necessary to reattach John Bobbitt's penis.(498)

Because there is limited use of prior-conduct evidence by the prosecution against a criminal defendant in Virginia,(499) where the Bobbitts lived, John Bobbitt was acquitted of marital rape.(500) At Lorena Bobbitt's later trial for assault, however, the judge permitted the defense to submit evidence of abuse. Lorena Bobbitt described years of escalating violence,(501) and multiple witnesses testified to seeing her husband "strike, shove, and belittle her, often for seemingly trivial matters such as how she cooked and dressed."(502) John Bobbitt denied ever striking his wife, but a court record proved he had pleaded guilty to such an assault in 1991.(503) Three doctors from the local hospital, two forensic psychologists, and a court-appointed psychiatrist all testified that Lorena Bobbitt was an abused woman.(504)

Lorena Bobbitt's defense counsel considered both self-defense and insanity as possible defenses to the assault charge. They opted for a temporary insanity defense, despite proof of a history of abuse and repeated threats that if she ever left "he would find her, follow her, surprise her and have sex with her anytime he wanted, anyplace, and that he would continue to rape her."(505) Although there were grounds for self-defense under Virginia law, defense counsel feared the effect on the jury of the fact that John Bobbitt was asleep at the time of the(506)

The jury, who acquitted Lorena Bobbitt by reason of temporary insanity, was composed of seven women and five men. The jurors originally split seven to five but refused to reveal if the split was along gender(507) After a reenactment, they acquitted her by reason of temporary(508) In a postscript, six months after John Bobbitt's acquittal for offenses against Lorena Bobbitt, he was arrested for assaulting his new live-in(509)

On June 12, 1994, Nicole Brown Simpson and Ronald Goldman were(510) Four days later O.J. Simpson, former football star, sometimes actor, and a well-known advertising symbol for Hertz Rent-A-Car, was charged with the killings.(511)

Nicole Brown and O.J. Simpson were married in 1985.(512) Their marriage seemed to transcend race; they were an "All-American" dream couple with two children. But evidence shows that Nicole Brown Simpson was a battered woman who lived in an abusive situation for years.(513) Early on the morning of New Year's Day, 1989, Nicole called the police because O.J. had beaten her so badly that she had "a cut lip, a swollen black eye and cheek, and a hand print on her neck."(514)

The 1989 police report quoted Nicole: "He's going to kill me.... You never do anything about him. You talk to him and then you leave. I want him arrested."(515) The report quoted O.J.: "The police have been out here eight times before and now you're going to arrest me for this. This is a family matter. Why do you want to make a big deal of it? We can handle it.(516) Then, as in June 1994, O.J. got into his car and sped away from the(517)

Four months later, O. J. pleaded no contest to a charge of spousal abuse.(518) The prosecutor had requested a thirty-day jail sentence and compulsory participation in a year-long program for abusive men, hoping that such a sentence would teach Simpson that spousal abuse is a crime.(519) The judge rejected the prosecutor's recommendation and instead sentenced him to 120 hours of community service, two years' probation, and a $700 fine.(520)

There was evidence that Nicole's killing was a separation attack. Although divorced in 1992, Nicole Brown Simpson and O.J. Simpson attempted a reconciliation that(521) On the evening of her murder, Nicole celebrated her independence in a very public way at a dinner where she was surrounded by her parents, children, siblings, and(522)

There were seven incidents of O.J. Simpson stalking his former wife during the two-year period before her murder, but the prosecution only introduced one.(523) The jury did not hear about a 1994 incident at a restaurant when he yelled at his former wife when she was with Ronald Goldman. The jury did not hear about the times he threatened her with a gun and pushed her out of a moving car. The jury did not hear what Nicole Brown Simpson said or wrote about O.J. Simpson's threats that he would kill her if she ever left him. The judge ruled her words inadmissible hearsay because she was dead and couldn't be cross-examined.(524) For the same reason, the jury did not hear that Nicole Brown Simpson called a battered woman's shelter five days before her murder, terrified that her ex-husband was going to kill her.

O.J. wrote in a letter released publicly five days after the murders,

If we had a problem, it's because I loved her so much. Recently, we came to

the understanding that for now we were not right for each other, at least for

now. Despite our love we were different and that's why we mutually agreed to

go our separate ways. It was tough splitting for a second time but we both

knew it was for the best.... Nicole and I had a great relationship for most of our

lives together. Like all long-term relationships, we had a few downs and ups. I

took the heat New Year's 1989 because that was what I was supposed to do. I

did not plead no contest for any other reason but to protect our privacy, and

was advised it would end the press hype.... Nicole and I had a good life

together. All this press talk about a rocky relationship was no more than what

every long-term relationship experiences .... At times I have felt like a battered

husband or boyfriend, but I loved her. Make that clear to everyone.(525)

A jury composed of ten women, eight African American and two white, and two men, one African American and one Hispanic, found there was a reasonable doubt that O.J. Simpson murdered Nicole Brown Simpson and Ronald Goldman.(526)

Susan Glaspell's women could not serve on an actual jury in 1916 so they destroyed evidence in order to prevent the trial of one of their own. African Americans were on the Simpson jury but they did not trust the evidence presented to them by Mark Furman, a racist police officer, or by a police department with a racist history.(527) Although there is an intersection of race and gender, the women on the jury did not hear extensive testimony regarding the abuse of Nicole Brown Simpson or any expert testimony regarding woman abuse. One of them explained: " 'This was a murder trial, not domestic abuse.... If you want to get tried for domestic abuse go in another courtroom and get tried for that.',(528) The women could join the finding that the little evidence that was left after discounting the police evidence was inadequate to support a conviction. Perhaps the case of Nicole Brown Simpson will bring to public attention the severe problem of woman abuse in the same way that the case of Anita Hill raised the national consciousness on sexual harassment.(529) Only when we admit we have a problem can we then begin to try to deal with it.

C. Efforts to Evaluate, Control and Respond

1. The International Arena

There have been major efforts to include a woman's right to be free of violence within the definition of basic human rights.(530) The same private/public distinction that has been used to screen woman abuse from public condemnation and control within a country has been used on the international level.(531) The international law equivalent of the privacy defense, known as the cultural defense, has been used to make human rights discourse inaccessible to women.(532)

The cultural defense may explain why the United Nations has been unable to develop a comprehensive program to stop female genital mutilation after thirty years of study, and why the World Health Organization has traditionally treated such mutilation as a social and cultural matter outside of its competence.(533) Statistics and stories were needed to demonstrate that violence against women is not private, not beyond the control of the state, not culturally valuable and not beyond the cognizance of international human rights law.(534)

Such documentation finally took place when women's groups from all over the world attended the United Nations Conference on Human Rights in Vienna in June 1993.(535) From their presentations, the world learned of genital mutilation, marital rape, bride-burning, and so-called honor killings. Recent findings show that there were 6200 bride-burning deaths in India in 1994;(536) 772 women were killed by their husbands in Brazil in 1980 in what were legal, non-criminal honor killings until 1981;(537) 70% of all crimes reported to the police in Peru were of women beaten by their partners;(538) wife beating is becoming a more frequent cause of divorces initiated by women in Japan;(539) female infanticide occurs frequently in China.(540)

The Vienna Conference adopted a Declaration and Programme of Action on June 25, 1993 that called for "the elimination of violence against women in public and private life. . .and the eradication of any conflicts which may arise between the rights of women and the harmful effects of certain traditional or customary practices, cultural prejudices and religious extremism."(541)

The United Nations finally recognized violence against women as a violation of human rights when the General Assembly adopted the Declaration on the Elimination of Violence Against Women on December 20, 1993.(542) It included battering and marital rape within the definition of violence against women and warned member states against "invok[ing] any custom, tradition or religious consideration" to avoid their obligations.(543) As part of a multilevel strategy to have women's rights recognized as human rights, there have been attempts to expand the grounds for granting asylum to include violence against women.(544) In 1994, for the first time, the U.S. State Department's annual report on international human rights focused on the treatment of women, including data from 193 countries.(545) In 1995, the U.S. Immigration and Naturalization Service recognized rape, domestic abuse, and other forms of violence against women as grounds for political asylum.(546)

2. Professional and Religious Organizations

The medical profession has started to educate its members to diagnose and treat woman abuse, including notification of police or other governmental authorities. Former Surgeon General C. Everett Koop, together with the Department of Health and Human Services and the Department of Justice, sponsored a major Workshop on Violence and Public Health in 1985.(547) The workshop brought together experts and practitioners from diverse fields who offered wide-ranging recommendations on spouse abuse, rape and sexual assault.(548) The medical profession has since been shocked by the severity of the problem which its own research has revealed.

Two emergency room studies were completed in Philadelphia, one at the Medical College of Pennsylvania in 1976(549) and the other at eleven emergency rooms in predominantly African American areas of western Philadelphia between March 1987 and February 1988.(550) The 1976 study reviewed the records of all female trauma victims except victims of vehicular accidents and natural disasters.(551) The study classified any woman as "positive for battering" if she stated that her injuries were caused by a man with whom she was or had been intimately involved.(552) The percentage of women identified as positive for battering was initially 5.6%.(553) After staff training in woman abuse, that number increased to 30%.(554) Forty-two percent of the patients between eighteen and twenty years of age were identified as abused.(555)

The 1987-88 study reported that violence was the most common cause of injury to women aged fifteen to forty-four.(556) The injuries were consistent with a pattern of repeated violent episodes involving woman abuse.(557) When location was recorded, 61% of the incidents occurred indoors.(558) Where the perpetrator was identified, 62% were husbands or male intimates.(559) The high number of injuries reported from falls by young women, an unlikely group for such injuries, raised questions about whether violence was even more prevalent than reported.(560)

A 1993 patient study was conducted by means of a self-administered questionnaire at three emergency rooms and two walk-in clinics in Denver, Colorado.(561) Only women with husbands or male intimates at the time of the visit were included,(562) thereby excluding those at highest risk for separation attack.(563) The study included vehicular accident injuries,(564) but excluded severely injured women and women who died of their injuries.(565) It nevertheless found that 11.7% of the visits were for acute domestic violence.(566) When vehicular accidents were excluded, the rate rose to 17.9%.(567) The study found that approximately 54.2% of the women who completed the questionnaire had suffered from domestic violence at some time in their lives.(568)

There is still insufficient widespread training of medical professionals, including emergency room staff, to detect and deal with woman abuse.(569) The President of the American College of Obstetricians and Gynecologists reported in 1992 that when he started asking directly and routinely about woman abuse, he discovered two or three cases a week rather than a few a year.(570) The true incidence of violence during pregnancy is unknown,(571) with figures ranging from 4% to 8%(572) to 17%(573) to 37%.(574) The American Medical Association (AMA) is attempting to educate physicians on the high incidence of increased violence during pregnancy.(575) In 1992, the AMA recommended that doctors routinely screen their female patients because woman abuse and marital rape are so common.(576)

The AMA has used its publications as ongoing educational tools,(577) devoting almost an entire issue of its 1992 journal to a multilevel approach to woman abuse.(578) A report from the AMA Council on Ethical and Judicial Affairs attempted to dispel common misconceptions concerning the abuse of woman and emphasized physicians' ethical duties to diagnose, intervene, and treat abused women.(579) The articles published in the issue addressed all physicians,(580) and specifically family practitioners and obstetricians and gynecologists,(581) who are often women's primary care physicians and those who deal with pregnant women, an especially high-risk group. An article by former Surgeon General Antonia C. Novello(582) and an editorial, Violence, Values, and Gender,(583)sought to drive home the importance of the issue. A 1995 issue of the Journal of the American Medical Association followed up with additional articles and editorials.(584)

The American Bar Association (ABA) and the AMA have finally joined forces to combat woman abuse. Together with other national organizations, they created a Commission on Domestic Violence in February of 1995. Lawyers, doctors, educators, law enforcement officials, social workers and others will work together, according to ABA President George E. Bushnell Jr., to "develop model interdisciplinary programs and marshal the talents and resources of the many professions represented to enable communities to better serve victims [of woman abuse]."(585)

Awareness has also come to the insurance industry. After widespread reports that insurance companies were denying health and/or life insurance coverage to abused women, efforts were undertaken to prohibit such discrimination. At the national level, bipartisan legislation was introduced in Congress; at the state level, the National Association of Insurance Commissioners is drafting guidelines for the states and several state insurance commissioners have held hearings and are drafting legislation.(586)

There have been calls for American clergy, including Christians, Jews and Muslims, to speak up on the issue of woman abuse.(587) The American Catholic Church has publicly condemned woman abuse. In a published statement, American Catholic bishops tried to dispel the traditional belief that because Adam and Eve were one, an abused wife had no recourse. "As bishops, we condemn the use of the Bible to condone abusive behavior. A correct reading of the Scriptures leads people to a relationship based on mutuality and love."(588) The statement referred to violence against women as "sinful."(598) It offered practical advice to pastors and pastoral staff: In marriage preparation sessions, it advised to check patterns of resolving disagreement; in baptismal preparation sessions, it alerted that pregnancy may trigger violent behavior; it reminded that women are most at danger at or after separation.(590) Despite the increased activity of professionals, more leaders must condemn woman abuse and educate others about woman abuse within their professions and the larger community.

3. The Official Players: Reports, Lawsuits, and Arrests

To deal effectively with woman abuse we must recognize a continium: from the beliefs and actions of the parties in abusive situations; to the responses and non-responses of the official players in the criminal justice system--the police, prosecutors, and judges; and finally to the application of our current laws by jurors--the laypeople who represent the community.(591) Throughout this continuum individuals' perceptions of reality determine their actions.

Efforts to deal with woman abuse have focused on the official players and have often ignored the two ends of the continuum critical to any final solution, the parties and the jurors. Many laypeople enter the process with beliefs about woman abuse that do not tally with reality. It may be that lay perceptions are being changed by unofficial means though the mass media, which produce shows such as The Burning Bed(592) and which report highly visible cases, such as those of the Bobbitts and the Simpsons.

Segments of the federal government became active in researching and educating on woman abuse in the 1980s. In 1982, the United States Commission on Civil Rights published its comprehensive report, Under the Rule of Thumb: Battered Women and the Administration of Justice.(593) Since then, the Bureau of Justice Statistics of the Department of Justice has commissioned major reports, including Violence against Women in January of 1994(594) and Murder in Families in July of 1994.(595) Senator Joseph Biden, as Chair of the Senate Judiciary Committee, released a committee report, Violence against Women: A Week in the Life of America, supporting legislation to equalize justice for abused women and to supply needed resources.(596) The comprehensive Violence Against Women Act was passed in 1994 as part of a larger crime control bill.(597)

Lawsuits were the earliest modern attempts to force public officials to recognize and deal appropriately with woman abuse cases. In 1976, Scott v.Hart(598) became the first class action on behalf of battered women. The named plaintiffs were five African American women who had repeatedly called the Oakland, California, Police Department for protection from abusive husbands or male intimates.(599) The police had either failed to respond or had responded ineffectually. The case was settled when the Oakland Police Department agreed to new policies that included quick responses and arrests whenever there was probable cause.(600) The second major class action was Bruno v. Codd(601) brought in 1977 against New York City's Police Department, Family Court and Probation Department. New York's highest court dismissed the counts against the Family Court and the Probation Department,(602) but the Police Department entered into a consent judgment similar to the one in Oakland.(603)

Police were traditionally reluctant to intervene in what they called domestic disturbance or domestic violence cases. Under common law, police officers could not arrest unless there had been a felony or the officer had witnessed a misdemeanor.(604) Domestic assaults were usually classified as misdemeanors and the violence had ended by the time the police arrived on the scene. Today, all states allow warrantless arrests where police have probable cause to believe a misdemeanor domestic assault has occured.(605) Yet, police have argued, on the one hand, that domestic assault cases were not serious enough to merit police intervention, and, on the other hand, and clearly in conflict with the first argument, that intervention in such cases posed substantial dangers to police.(606) For years, many believed that 20% to 33% of assaults or homicides committed against police officers occurred when police officers responded to domestic disturbance calls.(607) More recent statistics, however, show that domestic disturbances are among the incidents least likely to result in police injuries.(608)

There has been a widespread movement to divert woman abuse cases out of the criminal law system to alternative dispute resolution systems such as mediation.(609) Even police were not to arrest but to mediate themselves.(610) Over time, mediation changed from mediation by police officers, who were not suited to the role either by profession or training, to mediation by those who were purportedly alternative dispute resolution experts.(611)

Mediation is based on a principle that each party participates equally in the search for a mutual agreement, but, in a culture of abuse, equal participation is impossible. Mediation often occurs as part of a separation, divorce, or custody case, times when an abused woman is most at risk of serious injury or death. It is increasingly recognized that safety is a right that exists prior to any mediation session and should be non-negotiable,(612) a concept similar to the new international law recognition that safety is a basic non-negotiable human right. Mediation seeks to avoid blame and factfinding, but this perpetuates the status quo of victim responsibility and abuser domination in the same way that labeling such relationships as private and beyond the power of the state perpetuates the status quo. Some experts believe that mediation is improper when a relationship is based on a culture of battering.(613)

In addition to the lawsuits against police departments, Gender Bias in the Courts reports, now completed or in process in thirty states and completed for the Ninth Circuit,(614) have been used to sensitize members of the legal and judicial establishment.(615) The reports focus on, among other gender issues, the handling of abused women's cases. New York's first report was issued in 1986;(616) a follow-up study took place five years later on the handling of domestic violence cases by New York City's courts.(617) The 1991 study noted the importance of the New York Judicial Committee on Women in the Courts, which has ongoing responsibility to assess, monitor, and educate on problems of gender bias.(618) There were indications that judges and other public officials had become increasingly familiar with domestic violence issues and sensitive to the legitimate concerns of abused women.(619) However, the 1991 study found that judges and prosecutors were often frustrated when abused women did not follow through with their complaints, that the safety of abused women had not been given sufficient priority, and that there was an extreme shortage of support services for abused women.(620)

The complex problems related to elimination of woman abuse can be understood by examining immediate arrest of the abuser as the purported sole solution. A major study of married and cohabiting men throughout America, funded by the National Science Foundation, assessed the costs men perceived as likely to follow their arrest for woman abuse.(621) Abusive men did not primarily fear the direct costs of criminal punishment or the loss of a job, with the mean perceived chances of occurrence at 36% and 27% respectively.(622) Instead, 84% believed that self-stigma would be the most likely cost of arrest.(623) Approximately 75% believed that "family stigma" and "social disapproval" would follow.(624) Fifty-five percent perceived the chance of losing a partner.(625) Thus, the abusive men surveyed feared arrest because of the humiliation it would bring them and their families and the damage it would cause to their relationships with female intimates, relatives and friends.

As a result of the lawsuits in Oakland and New York and a 1981 study in Minneapolis, which concluded that immediate arrest was a deterrent,(626) mandatory arrest has now become the police norm.(627) However, recent follow-up studies to the Minneapolis arrest experiment show that there is no one, easy solution to the deep-rooted problem of woman abuse. Five replications of the Minneapolis experiment, in Omaha, Charlotte, Metro-Dade, Colorado Springs, and Milwaukee, were completed by a team headed by Professor Lawrence W. Sherman, an author of the original Minneapolis study.(628)

A major symposium described and discussed the results.(629) The two key findings, as described by Professor Sherman, were that arrest for misdemeanor domestic assault had different effects in different cities and that the deterrent effects of such arrest varied depending on the employment status of the suspect.(630) On the basis of one of the five replication studies, he concluded that mandatory arrest was beneficial for white women but positively harmed Black women.(631) He generalized that advocating mandatory arrest in all cases "display[ed] an unfortunate racial and economic insensitivity."(632)

There was no shortage of responses to Professor Sherman, even within the same symposium. Most criticized the failure of the studies to consider the context in which the violence took place and found distortion in isolating one factor at one point in time.(633) Deterrence comes not just from arrest but also from conviction and punishment. Ninety-five percent of those arrested in the Milwaukee experiment were prosecuted, but less than 1% were convicted.(634) Even if convicted, very few abusers served time in prison.(635) The critics contended that a multifaceted approach could be successful. A study of the long-term consequences of police policy in London, Ontario, showed that when the police pressed charges against abusers and when a broad range of services, including shelters and therapy, were provided in the community, "there was a 25-fold increase in domestic violence filings, no reduction in the willingness of victims to request the help of the police, a higher level of satisfaction with the police, and a reduction in victim-reported incidents of violence."(636)

Professor Sherman's critics called for changes throughout the criminal justice system and not just in arrest.(637) They suggested experiments that considered the victims' and officers' behavior, and whether cases were prosecuted and sanctions imposed.(638) Substantive changes in the criminal law were suggested, including changes in the concept of imminence in self-defense.(639)

Increased awareness of woman abuse is helping in prosecutions against batterers. There were 600 abused women in prison in California for killing their abusers in 1992, but 21,000 abusers are prosecuted yearly for misdemeanor domestic crimes in Los Angeles alone.(640) Evidence of past woman abuse in the prosecution of abusers can, in the long term, be the most effective means of dealing with the problem.(641) "By prosecuting the batterer before the victim is left with no other choice but to fight back, a life either hers or his--may be save."(642)

4. The Jury Studies

Jury decisions in cases of abused women who kill their abusers depend on the facts made known to jurors and how the jurors are instructed on law. Jurors' knowledge of facts depends on the preconceived notions regarding human behavior they bring with them to the trial and jury room, on the additional knowledge that they gain from evidence admitted at trial, and on discussions in the jury room. Jurors' pretrial knowledge of woman abuse may be erroneous, because it is based on misconceptions and incorrect stereotypes. Until there is widespread societal understanding of woman abuse, education must take place during the trial. The education must include specific evidence about the events at issue, context evidence surrounding the specific events, and expert evidence to explain both specific and context evidence. Education will also take place during the jury deliberations if the jury is representative of the diverse constituencies that make up the community. The defense's objective at the trial of an abused woman who kills her abuser should be to have the jury perceive her acts as reasonable rather than inappropriate or insane.(643) This includes recognizing her fear and actions within a context of long-term abuse and understanding the danger of separation attack.

Expert testimony is supposed to provide jurors, both female and male,(644) with knowledge that they otherwise might not have.(645) There is disagreement as to what view an expert should give to jurors about abused women who kill.(646) Early researchers started from a presumption that families were violent or believed that abused women acted abnormally. The family violence school is epitomized by Lawrence Sherman and his colleagues, who believe that violence arises from conflict situations, that violence is a method of settling family disputes, and that women and men engage in approximately equal amounts of violence. The learned helplessness theory of Lenore Walker is based on presumed deficiencies in abused women that should lead to verdicts of not guilty by reason of insanity or reductions from murder to manslaughter on the basis of diminished capacity. Another group of researchers argues that battered woman syndrome is not a mental disorder but a term descriptive of the effects of abuse on a woman similar to the effects encompassed under post-traumatic stress disorder.(647) Although not labeling abused women who kill as insane, these researchers still view such women as acting abnormally.

Opposed to these early researchers are those who see woman abuse as part of a tradition of male control and authority that includes possessiveness and separation attack.(648) These experts contend that abused women who kill may be acting reasonably in their assessments of both the severity of the harm they face and its immediacy, which should lead to verdicts of not guilty based on a reasonable need for self-defense. Such experts emphasize getting context evidence admitted and additional verdict options included instead of expert diagnostic testimony.(649)

Jury studies of actual trials(650) and experimental mock trials(651) show that expert testimony can provide factual and context information that results in acquittals or more lenient verdicts for abused women who have killed.(652) Context and a history of severe abuse have been very influential with jurors.(653) There may be more community sentiment for self-defense than verdicts from actual trials indicate. The likelihood of not-guilty verdicts may be limited by trial judges who refuse to give self-defense instructions or who narrowly define self-defense.(654)

The possibility of jury nullification is not great in the face of traditional self-defense law.(655) Finding aware and activist women like Susan Glaspell's Martha Hale on juries is rare. Women jurors, however, tend to find abused women's testimony more believable, including their inability to leave and their perceptions of actual severe danger necessitating the use of deadly force.(656) In addition to women, those holding more egalitarian sex-role attitudes and those who are younger and more educated generally seem to have less negative attitudes toward abused women and are more disapproving of the use of force in intimate relationships.

The most recent report on spousal murders from the Department of Justice indicates that both judges and juries are already sympathetic to abused women who kill.(657) Women spousal homicide defendants had a lower conviction rate generally, 70%, than husband defendants, 87%.(658) In trials before judges alone, wives were acquitted in 37% of the cases and husbands in 17%.(659) In jury trials, which normally involve cases with more factually complex life situations not clearly resolved by existing laws, juries acquitted 27% of wife defendants and none of the husband defendants.(660) Convicted wives were less likely than convicted husbands to be sentenced to prison, 81% to 94%, and, on average, received shorter sentences than convicted husbands, six years to sixteen and one half years.(661) According to information from prosecutors' files, more wife defendants, 44%, than husband defendants, 10%, had been threatened with a weapon or physically assaulted at or around the time of the spousal killing.(662) These trial and sentencing results may be explained partially by jury nullification and partially by the application in fact, even if not clearly mandated by law, of expanded notions of self-defense. However, our beliefs about both facts and laws must change substantially if all abused women who kill their abusers are to receive fair treatment.


A. Making Value Judgments

Just as interdisciplinary studies are popular today, psychiatrists on law school faculties were popular in the late 1950s and 1960s. Dr. Andrew Watson provided a valuable outsider's view of criminal law.(663) He was struck by the insecurity of law students, an insecurity that has not changed over time, and by their desire to bring certainty to their lives,(664) a desire the existentialists recognized we all share.(665)

Dr. Watson's description of what law school did to predominantly male students in the 1950s, using the example of criminal law and procedure, seems to still be accurate for many students.

[H]e will know much of substantive rules as well as the process of criminal law administration, and this lends itself to a sense of order and reasonableness. Any criminal situation can then be met with a predetermined approach that will be logical and provide a solution. If not examined too closely nor matched up with one's common sense and awareness of psychological information, the case can be closed and shelved in the law library. Society is secured; the court's docket will be cleared on the matter; stare decisis reigns supreme.(666)

Subtleties and the concept of change are lost. Anxieties and uncertainties are alleviated by learning a static set of rules that, right or wrong, will lead to predictable results.(667)

Students come to law school to learn "the law." On the first day of class I tell them there is no such thing as "the law" that is static and immutably correct. I quote Justice Cardozo: "Law never is, but is always about to be,"(668) and Justice Holmes: The law consists of "[t]he prophecies of what the courts will do in fact, and nothing more pretentious."(669) I tell them that they will be paid and relied upon for their predictive abilities and that we try to teach them the skills essential for accurate prediction. These skills include weighing "logic, and history, and custom, and utility, and the accepted standards of right "(670)

Law students today must learn to predict not within a static, existing system, but within a pluralistic and constantly changing society. I cite the pre-Socratic philosopher Heraclitus for the proposition that the only constant is change.(671) Such uncertainty strikes terror in the hearts of beginning law students, and by the end of their first semester many find security in Black Letters(672) and Legalines,(673) which are sold in every law school bookstore and become staple sources of the law for many law students.

The entire system--the Socratic method of teaching,(674) the hierarchical, tiered classrooms,(675) substantive and procedural laws, and the style of lawyering--were all shaped by males without significant female participation. Recent studies by Dr. Sandra Janoff(676) and Lani Guinier have shown that female students do not react well to male models of legal teaching, law, or lawyering.(677) "Becoming Gentlemen" exacts an academic cost for many women(678) and minority group members.(679)

In the criminal law, as in other fields, the rules were initially developed by English judges to deal with situations they experienced and understood. The tradition of law made by males in their own image continued in this country with both judge-made common law and legislation. Both our substantive laws and our legal processes, including legal education, were thus developed on male models.(680)

As a young teacher, I had difficulty understanding existing criminal law doctrines and procedures without worrying about gender equality. In fact, I kept hoping the whole woman's thing(681) would go away and let me just be a criminal law teacher. I later realized the woman's thing would not go away in my lifetime--or many lifetimes to come--and I learned that viewing the world, including the criminal law, from a woman's perspective was satisfying and exciting.

When I started full-time law teaching in 1971, there was little feminist legal literature, and it took instances of blatant discrimination to make me aware of inherent biases. A section of the Texas Penal Code in effect at the time stunned me. It provided: "Homicide is justified when committed by the husband upon one taken in the act of adultery with the wife, provided the killing takes place before the parties to the act have separated."(682) Under traditional English common law as adopted in most American jurisdictions, catching the wife in the act of adultery provided adequate provocation to partially excuse or partially justify the reasonable man for losing his cool, and allowing the reduction of the homicide from murder to manslaughter.(683) Texas found the killing by the husband totally justified. Of course, this doctrine did not apply to wives who killed under such circumstances.(684)

This statute taught me that words, including definitions of murder and manslaughter, mean "what we choose them to mean. "(685) Texas made the moral judgment that such a killing by a husband would not constitute a crime. Only when researching this article did I become aware that at least three other American jurisdictions- Georgia, New Mexico, and Utah(686)--also subscribed to this doctrine, which probably dates back to Roman law. From this, I began to question even more deeply the notion of adultery as an excuse or justification for killing.(687)

B. The Reasonable Man and the Insane Woman

1. The Common Law

The reasonable man appears in the criminal law, as in every other area of law. There is no question that the reasonable man is a man. In 1935, A. P. Herbert joked, but the truth is often told jokingly, "At common law a reasonable woman does not exist."(688) The reasonable man is the hypothetical human being who sets the standard of purportedly objective reasonableness, of legal and moral behavior, for all of us.(689) Any deviation is labeled subjective, a bad word that conjures up images of chaos, of a world of no law and no standards. The reasonable man has been replaced by the reasonable person, but this individual still seems to have the mental, emotional and physical characteristics of a man, and, as we shall see, an irrational, jealous and violent man at that.

Much has been written about, and cases litigated on, whether there should be a reasonable woman standard and even whether there should be a reasonable abused woman standard.(690) Because the reasonable man has always been a hypothetical human being, there is no reason why the reasonable person could not be a totally hypothetical human being embodying both masculine and feminine views of the world--like the Indian god, Siva. This hypothetical figure must struggle, as must we all, to function in an increasingly diverse society, to place her/himself in the shoes of a reasonable person with different physical characteristics and life experiences. Only if the reasonable person were defined so as to adopt all of the characteristics, including the moral system, of the individual on trial, would there be no moral standards left in criminal law.

Creating a truly reasonable person need not lead to total subjectivity, but it does require us to carefully define the moral system under which the hypothetical reasonable person will operate. In a diverse society, that moral system must be developed through the inclusion of the viewpoints of all of our varied groups. It requires us to make clear choices as to what we will label right and wrong.

Morally blameworthy conduct is inherent in the definition of crime.(691) Because common law homicide was defined on the paradigm of the reasonable man and not the reasonable woman, abused women who killed were so far outside the paradigm that they often had to rely on an insanity defense. An excuse, such as insanity, finds there is something so wrong with an individual that the individual cannot be held criminally liable.(692) Insanity excuses conduct because an individual did not understand the difference between right and wrong, because the individual was acting abnormally and/or irrationally. A justification, on the other hand, such as self-defense looks to the circumstances surrounding a killing and finds that an act that would otherwise be murder is not morally blameworthy and therefore is not criminal.(693) It is not clear whether provocation is an excuse or justification. At common law, the circumstances of sustaining physical blows or discovering the wife in the act of adultery provided justifications that made the reasonable man less blameworthy, reducing murder to manslaughter.(694) These circumstances also partially excuse the reasonable man for losing control.

Because of our common law definitions, abused women have sometimes relied on the excuse of insanity.(695) In her early newspaper reporting on the Hossack case, Susan Glaspell referred to the possibility of the wife's insanity. After meeting Mrs. Hossack, her view changed. By the time she wrote her story, Susan Glaspell had rejected the notion that an abused woman who kills her abuser is abnormal, irrational or insane.(696) Although the men in the story viewed Minnie Foster Wright as "queer," the women did not.

Once we become aware of the widespread existence of woman abuse and the fact that many women who kill do so in response to abuse, we can no longer view their behavior as irrational and/or insane. Just as Susan Glaspell's women characters had to invent their own vocabulary, today's women have had to create words to describe old realities for women that were unnamed and not widely recognized. Sexual harassment, date rape, marital rape, and separation attack have existed for a long time, but have only recently been named and recognized as common and widespread offenses against women.(697)

Early definitions of battered woman syndrome, which included learned helplessness and lack of capacity for rational self-control, have been challenged.(698) Most abused women who kill their abusers have exhausted all reasonable avenues of escape. If the common law in Texas and three other American jurisdictions could find that the reasonable man was justified in killing for adultery, then our legal system could find the abused woman who kills her abuser justified in doing so in self-defense. If the common law in other states could partially excuse or partially justify the actions of a husband killing in the heat of passion,(699) similarly, our law could also partially excuse or partially justify the actions of an abused woman who kills her abuser.

At common law, intentional homicides were divided into first degree murder, second degree murder, and manslaughter. An intentional killing with malice aforethought was the highest degree of murder. If there was premeditation, the murder was in the first degree; without premeditation, it was in the second degree. In most cases, time was the key element in premeditation. Time was also a key element in provocation. Provocation caused the reasonable man to act quickly in the heat of passion before the blood had time to cool, which negated malice aforethought and reduced an intentional murder to manslaughter. These doctrines are so strongly imbedded in traditional criminal common law that the Supreme Court in Mullaney v. Wilbur(700) held it unconstitutional for a state to place the burden of proof on heat of passion necessary to negate malice aforethought on the defense.(701)

The issue of reasonableness comes into play in common law homicide in the doctrines of provocation and self-defense. Both doctrines were built on assumptions that validated the conduct of the reasonable man. Criminal law courses deal with the question whether that paragon of virtue, the hypothetical reasonable man, would ever be so provoked as to lose control and kill in the heat of passion. The common law's answer was "yes," and the circumstances under which this could occur were carefully defined to include only sustaining physical blows or discovering a wife in the act of adultery.(702) Traditionally, the husband had to actually see the act of adultery, but the law was extended to mere words, to being told of a wife's adultery.(703)

Having established these purportedly objective standards under which the reasonable man would kill, the law went on to require several purportedly subjective factors, including whether a defendant was actually provoked and whether there was insufficient cooling time.(704) Because the purportedly objective standards were built on the actions of the average abusive male, individual abusive males normally fit both of these objective and subjective standards.

Abusing a woman and killing a woman are not entirely different actions, but rather parts of the same "continuum of violence."(705) Adultery as provocation validates the angry and violent homicidal actions of abusive men who use stereotypical reasons and explanations to legitimize their assaults and homicides and to portray abused women as responsible for their own assaults or deaths. The woman's actions provoked him, the real victim, to kill her, the assaulter.(706) She deserved it, because he was only acting in emotional self-defense.(707) Because of this type of reasoning, O.J. Simpson could claim that he felt like a battered husband.(708)

The adultery scenario is an emotional self-defense addition to traditional self-defense for physical blows. If the wife actually engaged in sexual conduct with another male, or the husband reasonably believed that she did so, then the homicide would be reduced to manslaughter because his emotional reaction would be understandable to other men. If the woman could not reasonably be perceived as guilty of sexual impropriety, but the man exhibited irrational jealousy, then he still might claim that he was so angry that his killing was not premeditated, reducing the murder charge from first to second degree.

Lost in these scenarios is the fact that the acts of abusive men are not spontaneous. The majority of men who kill their female intimates have documented histories of violent assaults.(709) These men often stalk women looking for traces of sexual misbehavior, which they define as including any attempt to leave them. Thus, the traditional common law reasonable man, reacting to the purported provocation of adultery, is the prototypical abusive male who exhibits sexual jealousy, sexual possessiveness, anger, and a short temper.

Like provocation, common law self-defense could either be a complete justification resulting in a not guilty verdict, or it could be a factor reducing murder to manslaughter or negligent homicide. Again, the hypothetical reasonable man set the purportedly objective standard. If an individual who killed reasonably believed that there was an imminent danger of death or great bodily harm to himself or others, he was justified in committing the homicide, and thus, not guilty. Time, as it existed at common law, focused on events immediately before the killing.

Under the common law regime, even if faced with an immediate danger of death or great bodily harm, an individual could use only equal force to repel the danger. The doctrine of equal force, developed on a prototype of two males of equal size and strength, held that, if attacked without a deadly weapon, one could not respond with a deadly weapon. This doctrine obviously disadvantaged women, who are generally smaller and lack the same upper-body strength as men.(710)

Traditional common law self-defense imposes no duty to retreat, except for co-occupants of the same house. Given that most men are assaulted and killed outside their homes by strangers, while most women are assaulted and killed within their homes by male intimates, this doctrine also disadvantaged women.(711)

At common law, if the individual acted unreasonably under the objective standard but in good faith under the subjective standard on any of the common law self-defense factors, the conviction could still be reduced from murder to manslaughter or negligent homicide.

Men's emotions, men's realities, and men's stories form the basis of the common law doctrines of provocation and self-defense. Provocation required quick anger caused by infidelity or perceived infidelity.(712) Self-defense required an attack, or a reasonable belief of an immediate attack, evidence of which immediately preceded the killing.

The stories of abused women are much different. Fear, not anger, is the primary emotion. This fear increases as abused women realize that it is impossible to escape. Both provocation and self-defense extend over time for abused women.

2. The Model Penal Code

The Model Penal Code suggested changes to the substantive criminal law that acknowledge the world of abused women. The Code changed the concept of reasonableness in ways that could allow a jury to find a woman's killing of her abuser partially excusable or even justifiable. Using "extreme mental or emotional disturbance" as a reductive factor, the Code eliminated rigidly defined instances of provocation, heat of passion and cooling time.(713) Because its definition of self-defense included "immediately necessary . . . on the present occasion", the Code extended time.(714)

a. Extreme Mental or Emotional Disturbance

Under the Model Penal Code, murder becomes manslaughter when committed "under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse."(715) Reasonableness is "determined from the viewpoint of a person in the actor's situation under circumstances as [s/he] believes them to be."(716)

This Model Penal Code formulation is more flexible than the purportedly objective common law standard because it places the reasonable person in the defendant's situation. The Commentary explains that the term "situation" was "designedly ambiguous."(717) Personal handicaps and some external circumstances, such as blindness, shock, and grief, can be considered, but "idiosyncratic moral values" cannot.(718)

It is unclear which moral values the Code embraces and which it considers idiosyncratic. The Code recognizes that the reasonable person does not kill even when provoked.(719) It claims, however, that some intentional homicides "may be as much attributable to the extraordinary nature of the situation as to the moral depravity of the actor."(720) The Code's extreme mental or emotional disturbance formulation recognizes the "classic provocation cases" within its definition of extraordinary situations.(721) It expands upon them to include events other than a physical attack or the witnessing of adultery. The Commentary admits that mere words informing of adultery constitute adequate provocation.(722) However, the Code does not limit an extreme disturbance to the abusive man's emotion of anger; it recognizes the abused woman's fear. The Code expands the restricted common law notion of cooling time.(723)

Because it does not specifically define its moral basis, the Model Penal Code does not distinguish between the abused woman who kills her abuser and the abusive man who kills his wife because of suspected or actual infidelity or because of suspected or actual escape. Under the Model Penal Code, both could have suffered extreme mental or emotional disturbance that would reduce murder to manslaughter. Society cannot continue to avoid making the value judgments that would choose between these two. As a society, we must carefully evaluate whether both should be treated equally; whether both call for retribution and require deterrence. We must decide whether to validate the anger and offensive violence of the abuser or the fear and defensive violence of the abused. We must decide whether we find understandable and less culpable the acts of the abused woman who kills her abuser in a situation where she acted primarily by reason of fear. As a society, we have not begun to formulate, much less answer, these questions.

b. Self-Defense

The Model Penal Code recognizes self-defense "when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion."(724) A belief that is reasonable results in acquittal. A reckless or negligent use of self-defense reduces the degree of criminality.(725)

The difference between the common law and the Model Penal Code regarding the concept of time is reflected in the terms "immediate" and "imminent."(726) Although it is actually the concept of time, not the word used, which is important, common law immediacy limits its focus to the instant of the defendant's actions.(727) Model Penal Code imminence places its focus on the defendant's actions in a context of surrounding and past events.(728)

The Model Penal Code's example of time justifying the use of deadly force is "to prevent an assailant from going to summon reinforcements, given a belief that it is necessary to disable him to prevent an attack by overwhelming numbers--so long as the attack is apprehended on the 'present occasion.'"(729) Instead of this strained hypothetical, the Code should have used the most common situation, that of the abused woman who kills her abuser at a time when the abuser is asleep or otherwise incapacitated.

The Model Penal Code gives some relief from rigid application of the common law rules of equal force and retreat. It makes clear that equal force does not necessarily mean that unarmed force can only be met by unarmed force. Rather, the amount of force used "must bear a reasonable relation to the magnitude of the harm [the attacked] seeks to avert."(730) The tentative draft of the Model Penal Code required retreat even within the home.(731) The final version, however, gives abused women assaulted within their own homes relief from the retreat doctrine.(732)

3. Equal Application and Favorable Interpretations

Some argue that current law is adequate to protect abused women who kill or can be made adequate by minor adjustments to existing doctrines and equal application to women and men. This may be a political position, taken so that the changes advocated by these critics do not appear to be radical. Professor Kit Kinports verbalized the belief in 1988 that "[n]o substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds."(733) Actually, she advocated a major extension of current doctrine by calling for the recognition of a reasonable battered woman standard.(734) In 1991, Professor Holly Maguigan concluded that "the most common impediments to fair trials for battered women are the result not of the structure or content of existing law but of its application by trial judges."(735) She mistakenly assumed that law can be separated from interpretation and application. It cannot. Therefore, Holly Maguigan also advocated major changes in the existing law.(736)

Kit Kinports accepted standard self-defense doctrine that killing was justifiable only if the woman honestly and reasonably believed her adversary was about to kill or inflict serious bodily harm.(737) First, she argued that the abused woman did nothing to justify her abuser's violence against her.(738) She then used the reasonable battered woman standard to address the issue of time. Conceding that the battered woman could not use force to retaliate or to protect against anticipated assaults that were not imminent,(739) she required that a jury consider the history of abuse in determining whether the woman reasonably feared an imminent threat, even in a non-confrontational setting.(740) The reasonable battered woman might recognize the subtle signs that usually precede a severe assault. She might reasonably believe that escape would be impossible because of stalking, separation attack, and prior experience with the police.(741) Kit Kinports' reasonable battered woman standard would expand the common law notion of immediacy to include the abused woman who killed in a non-confrontational setting. She could have reached the same result by using a reasonable person standard that placed the reasonable person in the same context of abuse.

Holly Maguigan claimed to accept existing self-defense doctrine based on a model of danger in a confrontational setting and declared that it applied to abused women who kill. She found a 40% reversal rate in convictions of abused women who killed their abusers, a rate substantially higher than the normal 8.5% reversal rate in criminal cases.(742) She therefore concluded that trial judges were not properly applying existing substantive, evidentiary, and procedural laws to abused women's self-defense claims.(743) Relying on prior studies and her own sample of appeals from abused women's homicide convictions, Holly Maguigan concluded that 70% to 90% of battered women who killed did so in traditional confrontation settings.(744) The 10% to 30% of battered women who killed in non-confrontational settings, including Minnie Foster Wright, would not be helped by Holly Maguigan's arguments.

Although Professor Maguigan analyzed several aspects of self-defense jurisprudence in terms of majority and minority rules, she never gave the number of states that operated under each rule. Addressing reasonableness, a majority of states placed the hypothetical reasonable person in the situation of the defendant with the experiences and perceptions of such person. By contrast, the minority relied on a purportedly objective generic standard of reasonableness.(745) Obviously the abused woman who kills in a minority jurisdiction is at a substantial disadvantage. The definition of reasonableness influences rulings on the admissibility of, and instructions regarding, evidence of the social context in which the defendant acts.(746)

On issues of time and context, Holly Maguigan conceded that a woman defendant in an imminent jurisdiction was more likely to get a jury instruction on the relevance of her abuser's past violence.(747) On the issue of equal force, an overwhelming majority of jurisdictions permitted the use of a weapon against an unarmed aggressor.(748) On the duty to retreat, a majority exempted defendants attacked in their homes.(749) Finally, the overwhelming majority of states whose appellate courts have addressed the issue of expert testimony regarding battered woman syndrome held it to be admissible.(750) Obviously, that left some states that rejected it and some that had not spoken on the issue.

Given the large number of states that apply a male-oriented objective reasonableness standard, require immediacy and not imminence, apply a rigid traditional rule of equal force, require the defendant to retreat in her own home, and prohibit expert testimony on battered woman syndrome, there are many women who would not receive fair trials in either traditional confrontation cases or non-confrontational cases.

C. Facts: Male and Female

We must uncover the facts on which legal doctrines are based in order to understand the value systems underlying those legal doctrines.(751) Heat of passion based on adultery legitimizes the reasons abusive men give to explain their violence: they claim violent loss of control when provoked by sexual unfaithfulness; they use"' socially approved vocabularies . . . of female provocation and male victimization.'"(752) The stereotypes that legitimize violence rather than regret or forgiveness developed over centuries and are repeated so often that they are accepted as valid.

Men who abuse women and men who kill their wives and female intimates significantly overlap. Rather than unexpected and unpredictable emotional explosions, men who kill have a history of violence. Patterns are clear. Police are called multiple times; stalking, a sign of premeditation, is frequent; and death often occurs at or after separation. Approximately 60% of men who kill their wives or female intimates allege sexual unfaithfulness, and 50% claim desertion.(753)

Women kill their male intimates for different reasons and under different circumstances than their male intimates kill them.(754) Abused women who kill their abusers account for about half of all women who kill.(755) Women who kill their abusers, however, are viewed as "crazy" and "deviant,"(756) rather than as rational beings acting in self-defense. Women's self-defense is often viewed as female aggression.(757) A woman's need for a weapon to meet deadly unarmed male force, a woman's need to act during a lull in the violence when the batterer is asleep or otherwise incapacitated, and a woman's knowledge of her batterer's patterns of behavior and signals are not read as leading to a reasonable fear of death or serious bodily injury. Instead, they are read as evidence of premeditated murder.(758)

1. Different Concepts of Time

A key concept that needs to be reevaluated is time. Professor Ann Scales called for "recognition of a version of time very different from, but just as objective and truth-telling as white male standard time."(759) Homicide law clearly recognizes the male notion of immediacy. In the traditional provocation/heat of passion defense, the individual must react quickly to the provocation. Moreover, there must be no cooling time. If the response takes too long, premeditation may raise the offense to the highest degree of homicide. In traditional self-defense, the response must be an immediate reaction to an immediate threat to one's self or another. Similar to provocation, if the response is not fast enough, premeditation may be presumed. Disbelief of delayed stories reflects a view that the truth is "singular, immediately apparent, and permanent."(760)

The male notion of immediacy has been applied to abused women's self-defense cases.(761) Common law immediacy requires both physical and temporal proximity. From a woman's point of view, however, "the space around her need not be filled with flailing limbs and weapons in order to be threatening. The space need only be filled, by the man's definition of it, by his demonstrated ability to control it--by his need to fill it."(762) For abused women time is elongated: provocation continues,(763) as does the need for self-defense.(764)

2. Different Definitions of Emotional Self-Defense

Professor Charles Patrick Ewing suggested that most abused women kill in "psychological self-defense" and recommended that self-defense law be expanded to justify such killings.(765) Life consists of both physical and psychological existence. The argument that abused women who kill do so to avoid" `life without feeling alive,' `partial death,' or simply utter hopelessness"(766) resembles Martha Hale's fear that she allowed Minnie Foster Wright to "die for lack of life."

Professor Ewing demonstrated that our laws never gave absolute priority to the preservation of physical existence. The no-retreat rule protected the "true man" from acting in a cowardly fashion.(767) Yet, Professor Ewing failed to use the closest example, the common law's recognition of adultery as an excuse or justification for killing. Abusive men have long used psychological self-defense to justify their violence with "the bitch deserved it" defense.(768) The theory supposes that the man acted in emotional self-defense because the woman failed to meet his notions of appropriate conduct, including fidelity and non-desertion.(769)

Given that psychological self-defense has been recognized for abusive men, it is not a great stretch to apply it to abused women. Most abused women who kill their abusers, however, do not need it. Abused women are usually both physically and psychologically mistreated, and many are sexually assaulted.(770) Professor Ewing was actually trying to address the non-confrontation cases and traditional doctrines of temporal proximity and immediacy.

Professor Stephen Morse purportedly attacked Professor Ewing's notion of psychological self-defense,(771) but his arguments also apply to and limit physical self-defense by abused women. Professor Morse is trapped in a time capsule where the traditional male notion of immediacy is the only reasonable and objective standard.(772) He asks why an abused woman does not leave "rather than . . . kill when she [was] not in immediate danger of death or serious bodily harm."(773) Professor Morse fails to understand separation attack or to recognize the lack of resources for abused women, including adequate police responses and shelters.

3. A Woman's World

Let us consider what should not be so startling a suggestion; redefining our homicide laws from the perspective of the abused woman and not from the perspective of the abusive man so that women's stories become the reality that informs our criminal law. If adultery provided provocation to reduce murder to manslaughter, or, as was the case in Texas, to acquit, why shouldn't a history of physical abuse and fear of future abuse provide provocation to reduce murder to manslaughter or to acquit?

Even more radically, the law might be changed to legitimize the anger of the victim for past events. Normally, a killing committed where there is no fear of future attack would be the highest degree of homicide, a premeditated murder. It was never admirable for the reasonable man to lose control and kill in anger in response to the purported provocation of adultery, but his crime was reduced from murder to manslaughter. A killing in the heat of passion caused by the anger of a female victim of long-term abuse should be understandable to both women and men and should equally allow a reduction from murder to manslaughter.

On self-defense, minor changes in the doctrines of time, equal force, the duty to retreat, and the admissibility of expert testimony can help judges and juries recognize the reallies of the abused woman's life. The action of the abused woman who kills while her abuser is asleep or otherwise incapacitated can be justified as an immediately necessary response "on the present occasion" if she acted in self-defense with reasonable fear of future attack.

Ultimately, the law should move to a perspective that recognizes the facts of the life of each individual and provides a sensitive response to those facts. Such a caring society would work at stopping abuse before it started or stopping it as soon as it started by providing the woman, her abuser, and those they love with support systems.

As we struggle to Create such a just and caring society, we must recognize that abused women who kill are not insane, are not overly emotional, are not totally helpless. They have not failed to seek aid or to try to escape. Yet they have found a society unwilling to recognize their dilemmas and unwilling to provide relief. Our laws were written to understand, accept, and protect abusive men, not abused women. Legal changes must come from judges and legislatures sensitized to the abuse of women.(774)

We must sensitize not only officials who participate in our system of justice--police, prosecutors, judges, legislators, and governors--but also members of the public who are equally crucial players. Sensitization must take place in the community in which battering occurs, including abused women and abusive men, including the Martha Hales of the world who should have intervened but did not. It is the community that must reCognize and condemn abuse and provide resources to intervene and stop it. It is the Community that will supply the individuals who will make up the juries that ultimately decide the cases. The triers of fact, whether judges or juries, have been predominantly male or people for whom the male reality is dominant. We must integrate the world of women into our facts, our substantive legal doctrines, our formal and informal procedures, and our lawmaking processes. Unfortunately, we have not yet fully integrated women into our juries.


A. The Beginning of the Modern Era: Ballard and Fay

If Minnie Foster Wright had gone to trial for murder in 1916, she would have been judged by a male jury and charged by a male judge on substantive criminal law defined by men for men. In Massachusetts, where Susan Glaspell first produced Trifles, the court in Welosky prohibited women jurors even in 1931. By 1944, a majority of state courts had ruled that the Nineteenth Amendment made women eligible to serve as jurors where voting was the primary qualification for jury service.(775) Federal law, until 1957, made women's service on federal juries dependent on the law of the state where the federal court was located.(776) By 1961, women could serve as jurors in forty-seven states. In eighteen of those states and the District of Columbia, however, service was voluntary because women had an absolute exemption based solely on their gender.(777)

After World War II, the Supreme Court decided women's jury cases that challenged the validity of complete exclusion, voluntary service, and exclusion by peremptory challenge. Attitudes towards women's jury service continue to be shaped by divergent views of reality, by divergent theories of sameness and differences, and by divergent political visions of the jury and its relationship to parties, excluded jurors, and the community at large. The current status of women's jury service is one of partial de facto exclusion because the realities of women's lives still make us primary caregivers and disproportionately eligible for exclusion based on necessity. De jure exclusion exists through continued use of peremptory challenges. Although they cannot be used solely on the basis of gender, peremtory challenges can be used to exclude women because of any other factor, including viewpoint and occupation.

The first modern Supreme Court case regarding women's jury service was Ballard v. United States,(778) decided in 1946. The exclusion of women from federal grand and petit juries was challenged in a federal district court in California, a state where women were not eligible to serve on juries. Justice Douglas based his opinion on the Supreme Court's supervisory power over the administration of justice in the federal courts,(779) which has been used to avoid reaching constitutional issues. Issues initially decided on the federal supervisory power, however, have later been based on the Constitution.(780)

Justice Douglas addressed both sameness and differences. The prosecution argued sameness to justify the exclusion of women from juries on the ground that an all male panel drawn from diverse groups within a community would be as representative as a panel that included women because women are influenced by the same factors that influenced men--personality, background, and economic status.(781) Gender was not important. Men could adequately represent women. Justice Douglas responded: "[M]en likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel?"(782)

Justice Douglas embraced differences and echoed Susan Glaspell's references to half-finished, and therefore incomplete, tasks. Justice Douglas wrote: "[T]he two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence of one on the other is among the imponderables."(783) He understood that gender exclusion, like racial exclusion, destroys the broad base juries must have in our democratic society.(784) The potential for injury extended not only to the defendant but also "to the jury system, to the laws as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts."(785) Despite sweeping language, Ballard was decided on the issue of the proper administration of justice in the federal courts, not on the constitutional rights of the defendant, of excluded women jurors, or of the community generally.(786)

The following year Fay v. New York(787) underlined the fact that Ballard was a limited federal supervisory power decision. New York exempted specific occupations from jury duty, among them clergy, embalmers, captains, and licensed pilots, as well as all women.(788) The majority in Fay found the New York statute constitutional because it did not specifically exclude any person because of race, creed, color, occupation, or sex.(789) The Court found that the defendant had a neutral jury, even though the general panel of 60,000 people had only 7,000 women' the special panel had thirty women, and the convicting jury ended up with only one.(790) The Court agreed that there was no logical reason why the proportion of women in a jury pool did not equal their proportion in the population, but it recognized the historical reason that women traditionally had been excluded from juries.(791) Again, discrimination against women was used to justify more discrimination against women. Justice Jackson's view of the constitutional rights of women was most limited. He believed that the Nineteenth Amendment applied only to the right to vote, and the Equal Protection Clause of the Fourteenth Amendment did not apply to women on jury panels.(792) Justice Murphy dissented, finding that the systematic and intentional exclusion of qualified groups violated the Equal Protection Clause's requirement that a jury be drawn from a fair cross section of the community.(793)

In 1977, the laws of New York were changed to provide an exemption for those with primary child care responsibility, regardless of gender.(794) In recent years, New York, like other states, began suffering from a juror shortage due to too many automatic voluntary exemptions.(795) It rescinded all exemptions, including those for parents with primary child-care responsibilities. This seemingly neutral and just solution will impact more heavily on women who are primarily the caregivers in our society.

B. The Voluntary Exclusion Cases: Hoyt and Taylor

In a 1961 case, Hoyt v. Florida,(796) Gwendolyn Hoyt, who was convicted by an all male jury of the second-degree murder of her husband, claimed violation of the Equal Protection Clause of the Fourteenth Amendment.(797) Florida limited jury service to males until 1949 and thereafter required that women volunteer by registering with the clerk of court.(798) Out of approximately 46,000 registered women voters in the county--40% of the total voting population--only 220 women had volunteered for jury duty between 1949 and 1957, when Gwendolyn Hoyt's trial took place.(799) Gwendolyn Hoyt pleaded not guilty and not guilty by reason of temporary insanity.(800)

Writing for the Court, Justice Harlan mentioned only that she was charged with killing her husband by assaulting him with a baseball bat.(801) The Supreme Court of Florida's opinion gave only a slightly less abbreviated version of the facts, noting "prolonged marital discord and alleged infidelities, [and that she] called her husband from his military station in another city by a false report of injury to their young son."(802) These versions of reality created the impression that Gwendolyn Hoyt was a violent, unfaithful, and deceitful woman. Only the dissenting opinion of Florida Supreme Court Justice Hobson gave sufficient facts to place her actions in their proper context.(803)

In fact, it was Gwendolyn Hoyt's husband, an Air Force captain, who was unfaithful to his wife.(804) About a year and a half before the homicide, he was transferred from Tampa to Miami, and Gwendolyn pleaded that she and their eight-year-old son be allowed to move with him.(805) For the first eight or nine months, he spent his weekend leaves with his wife and son.(806) Then he suddenly changed his habits and began cutting his weekend visits short, failing to come home during his leaves, receiving strange phone calls while at home, coming home with lipstick on his shirt, washing his clothes immediately upon arrival at home, even at three or four o'clock in the morning, and doing other acts which were understandably upsetting to his wife.(807)

Gwendolyn Hoyt last heard from her husband more than ten days before the homicide.(808) She repeatedly tried to reach him by telephone.(809) The false message that their son was dying finally brought him home.(810) She tried to make her husband happy and to reconcile differences, but he refused her overtures.(811) While taking their son's broken baseball bat to the garbage can, her husband's "sudden, complete and final rejection" of his marital responsibilities overcame her.(812) Justice Hobson noted that even a normally stable wife would have become emotionally upset under such circumstances.(813) She, however, had epilepsy that resulted in brain damage, so emotional distress affected her more severely than the ordinary person.(814)

Justice Hobson would have reversed the majority decision on several grounds, including the admission of evidence that she had gone out on a date about a week before the homicide and the hearsay testimony of the employees of a baby-sitting agency as to their conversation with the man she had dated and with one another about the man's giving the agency a false name. This testimony permitted the jury to infer that she was a liar and "equally as guilty as was her husband of infidelity, although her character was never placed in issue."(815)

On appeal to the Florida Supreme Court, Gwendolyn Hoyt claimed that women jurors would have been more understanding and compassionate in assessing both her act and her defense of temporary insanity.(816) Justice Hobson, in his dissent, found that she did not have "a jury of her peers" and concluded that the Florida statute was unconstitutional because it placed an undue burden upon women that would not be tolerated if placed on minorities.(817)

In his opinion for the United States Supreme Court, Justice Harlan did not review the continuing validity of Strauder's dictum that a state may constitutionally confine jury duty to males, because Florida did not completely exclude women from jury service.(818) He relied on a purported distinction between privileges and duties(819) and found no "arbitrary and systematic" exclusion prohibited by the Fourteenth Amendment.(820) Justice Harlan concluded that a "woman is still regarded as the center of home and family [and] should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities."(821) Chief Justice Warren, joined by Justices Black and Douglas, concurred and applied a reduced equal protection standard to find that Florida was making "a good faith effort to have women perform jury duty without discrimination on the ground of sex."(822)

In 1975, the Supreme Court in Taylor v. Louisiana(823) finally declared voluntary exclusion of women from juries unconstitutional,(824) 100 years after it found de jure and de facto exclusion of African American men unconstitutional. Taylor again presented the issue of whether voluntary jury service by women was constitutional, this time on behalf of a male defendant in a particularly brutal criminal case. The Louisiana statute, similar to the Florida statute in Hoyt, provided that a woman could serve only if she filed a written declaration of a desire to do So.(825) Although 53% of those eligible for jury service in the relevant parishes were women, less than 10% of the people on the jury wheel were women.(826) There were no women in the venire from which the petit jury was drawn, and, therefore, there were no women on the petit jury.(827)

The Court in Taylor avoided discussion of the Fourteenth Amendment's Equal Protection Clause and based its decision on the Sixth Amendment's right to jury trial as incorporated and made applicable to the states through the Due Process Clause of the Fourteenth Amendment in Duncan v. Louisiana.(828) Emphasizing the political nature of the jury, it focused on the fair cross section requirement of the Sixth Amendment as essential to promote group deliberation.(829)

Inherent in these concepts are notions of diversity of experience, viewpoint, and interest.(830)

Taylor cited Congress' similar interpretation of the fair cross section requirement in the 1968 Federal Jury Selection and Services Act.(831) The House Report stated that " `[a]s long as there are significant departures from the cross sectional goal, biased juries are the result--biased in the sense that they reflect a slanted view of the community they are supposed to represent.'"(832) The Court similarly believed bias would exist if the jury was composed of "only special segments of the populace or if large, distinctive groups [were] excluded."(833) Community participation was consistent with democracy and critical to public confidence in the justice system.(834) Because women were sufficiently numerous and distinct from men, systematic exclusion of women violated the male defendant's Sixth Amendment right to a jury drawn from a fair cross section of the community.(835) This right could not be overcome on "merely rational grounds."(836)

The Court in Taylor purportedly distinguished Hoyt because Hoyt was based on the Equal Protection Clause of the Fourteenth Amendment.(837) Hoyt had found a "sufficiently rational basis" to exclude women from juries.(838) This constitutional interpretation meant that women's right to participate on juries could be denied on a mere rational relationship test under the Equal Protection Clause but that a criminal defendant's Sixth Amendment right to be judged by a jury could not.

Although unwilling to confront Hoyt directly, the Court relied on a changing times argument. Hoyt defined women in terms of the home,(839) but Taylor cited 1974 statistics from the Department of Labor showing that 54.2% of all women between the ages of eighteen and sixty-four were in the labor force.(840) Legislatures could grant exemptions based on hardship, but the total exclusion of all women on the assumption that it would be a special hardship for every woman to perform jury service was untenable.(841)

The Court acknowledged that the fair cross section requirement could be defined differently at different times and places.(842) However, women constituted a substantial percentage of the American population from the time of the founding of our country. In this sense the community has not changed. Women have always worked, although for some women much of that work was uncompensated and within the home or on the farm and therefore invisible to an industry-commerce-based economy.(843) Many women still have primary family-care responsibilities, but some of their work, usually the compensated part, takes place outside the home. Only in the sense that some of women's work is now visible and acknowledged has the role of women within the community changed.

Justice Rehnquist was the sole dissenter in Taylor.(844) He could not "conceive that today's decision is necessary to guard against oppressive or arbitrary law enforcement, or to prevent miscarriages of justice and to assure fair trials."(845) He saw no reason to abandon Hoyt.(846)

C. The Peremptory Challenge Cases for African American Males and All Females: Batson and J.E.B.

Both Batson v. Kentucky(847) in 1986 and J.E.B. v. Alabama ex rel TB.(848) in 1994 concerned the use of peremptory challenges. In Batson, where the prosecutor eliminated all African Americans from a criminal petit jury, the Court defined the philosophical and political role of the jury by synthesizing the reasoning of its Sixth Amendment jury trial and Fourteenth Amendment equal protection cases.(849) The Court claimed, however, that it was deciding the case solely on the basis of the Equal Protection Clause.(850) Later cases extended Batson to all peremptory challenges based on race, whether by the prosecution or the defense in criminal cases or by any party in civil cases.(851)

The Court in Batson returned to its early jury cases, Strauder and Neal, and for the first time articulated an understanding of all the rights affected when racial discrimination interferes with the selection of a jury.(852) The defendant's right to a fair trial is denied when the defendant is not judged by a body of "`peers or equals,'" namely "`his neighbors, fellows, associates, [and] persons having the same legal status in society as that which he holds.'"(853) The individual denied participation in the jury process is also discriminated against. "Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial . . . . A person's race simply `is unrelated to his fitness as a juror.'"(854) Finally, discriminatory jury selection "touch[es] the entire community [and] undermine[s] public confidence in the fairness of our system of justice."(855) Only Justices Rehnquist and Burger dissented.(856)

The major issue that remained after Batson was whether gender-based peremptory challenges were also unconstitutional.(857) J.E.B. was a paternity case where both sides played the gender elimination game which resulted in an all female jury: The state used its peremptory challenges to remove all male jurors and the putative father used all but one of his strikes to remove female jurors.(858)

Under our peremptory challenge system, each side seeks to eliminate from the jury all those whom it believes, on the basis of stereotypes,(859) may have a different and, from its perspective, unfavorable view of their client's cause. Belief in differences clearly underlies the peremptory challenge system. But rather than embracing differences, the traditional peremptory challenge system aims to eliminate or reduce to the lowest possible number all those of a perceived unfriendly group. Peremptory challenges are used to eliminate the other, rather than to adjust to true diversity in views of the world, value systems and reasoning processes.(860)

Adjusting to diversity means inhabiting all of our institutions with all those who live in our society. Tokenism does not work. In her classic studies of women in male dominated organizations, Rosabeth Kanter showed that tokenism heightened visibility of token women, polarized and isolated token women, and assimilated token women.(861) Token women are usually prevented from exerting influence or do so only at the cost of becoming "one of the boys."(862)

African Americans constitute only 12% of our society, Hispanics 10.2%, Asians 3.5%, and Native Americans 0.7%.(863) Members of these groups are minorities in what many of them perceive to be an alien and hostile society that further minimizes them by keeping them in low level positions. Although women are a numerical majority, we also have suffered in a society accustomed to minimizing our participation. There are currently only approximately 8,700 women judges, 22.8% of all judges in the United States;(864) only seven women in the United States Senate, 7% of the Senate;(865) and only forty-seven women in the United States House of Representatives, 10.8% of the House.(866) The comprehensive Gender Bias in the courts reports have shown both massive underrepresentation and massive discrimination against women throughout our legal system.(867)

A fine litigator whom I know was upset with J.E.B. because he had been trained and successful at winning by eliminating from the jury those whom he believed would be sympathetic to the other side. Depending on his client in a given case, he tried to eliminate Blacks or whites, men or women, Black men or white men, Black women or white women, doctors (primarily white men), nurses (primarily women), school teachers (primarily women), or any combination of the above or others. To illustrate his point, he posited a case to be tried in Philadelphia, a city whose population is 51.6% white and 39.9% Black,(868) involving an elderly Black woman plaintiff, with whom Black women jurors would tend to sympathize, against a corporation he was representing. I suggested to him that, rather than trying to eliminate all Black women from the jury, he should consider hiring a Black woman attorney and that he himself learn to communicate better with Black women. I suggested the corporation hire Blacks at all levels. These suggestions came as a shock. They described a world totally different from the world he had been living in and helping to perpetuate. These suggestions meant he would have to welcome others into his world rather than try to keep them out. Furthermore, it meant that second-generation diversity problems would require those traditionally in power positions readjust to the views of those recently admitted rather than mold the newcomers to the established views of the world.

Democratic development can be detoured, but it cannot be reversed or stopped. Like the Supreme Court's decision on one-person one-vote,(869) so too has curtailment of peremptory challenges become a powerful political idea whose time has come. Together Batson and J.E.B. lead to a new orientation for our society. The ideal of allowing political participation by all adult citizens on our juries was always present in the notion of trial by a jury of one's peers.(870) Now that ideal must be applied to a complex democratic society facing second-generation diversity problems.

The initial Rodney King trial(871) highlighted the problems that we, as a society, face if we do not learn to integrate "the other" The trial was moved from Los Angeles, one of our most diverse cities, to an area where few African Americans resided. Peremptory challenges were then used to eliminate all African Americans from the petit jury.(872) Rodney King's peers were not adequately represented on the jury in terms of either members of his minority group or of members of the majority group capable of internalizing an African American perspective. The system was deficient and the system failed with catastrophic results.(873)

Justice Blackmun's opinion in J.E.B. demonstrated a sophisticated understanding of the intersection of race and gender. Justice Blackmun used a tripartite argument to lay a foundation for the application of strict scrutiny to gender classifications. First, after reviewing the history of discrimination against women and African Americans, he concluded that the degree of discrimination against women was comparable to that against African Americans.(874) Second, he demonstrated that discrimination against women could serve as a pretense for racial discrimination where those excluded are African American women.(875) Third, he reviewed case law to find support for strict scrutiny of gender classifications.(876)

In the first part of his opinion, Justice Blackmun pointed out that for most of our history, peremptory challenges were not needed to eliminate women from jury panels because women did not serve on juries until this century.(877) The severity of discrimination against women was emphasized by reference to the dictum in Strauder.(878) Discussion of Strauder and Neal underlined the fact that Black men received the right to serve on juries long before any women, Black or white. References to the Nineteenth Amendment equated all women with African American men in needing a specific constitutional amendment to give them the vote, the most basic right of citizenship in a democracy. The Nineteenth Amendment was narrowly interpreted to prohibit to women the political participation in jury service that had been granted to African American men.(879) Even when women were allowed to serve on juries, the states continued discrimination against them by erecting barriers, such as voluntary exemptions, designed to deter exercise of the right to jury service.(880) Justice Blackmun avoided labeling one form of discrimination, against African American men or against women, worse than the other.(881) However, since he established that the history of discrimination against African American men and against all women was similar and in some respects worse for women,(882) if strict scrutiny applied to race, it should also apply to gender.(883)

Justice Blackmun then demonstrated that the categories of race and gender overlap and that the exclusion of women from juries can mask the exclusion of minority women.(884) The majority of lower court decisions extending Batson to gender involved the use of peremptory challenges to remove minority women.(885) African American and other minority women bear the burden of a unique synergistic discrimination that intertwines race and gender and that goes beyond the discrimination experienced by either minority men or majority women. The Supreme Court for the first time recognized that African American no longer meant only African American men but also included African American women and that female no longer included only white women but also women of color.

Finally, Justice Blackmun's opinion openly recognized that gender classifications should be subject to strict scrutiny by first framing the issue as "whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on basis of race."(886) After recognizing that Taylor overruled Hoyt,(887) the fact that Hoyt was decided on the basis of the Equal Protection Clause meant that Taylor must also have relied on an equal protection analysis.(888) Moreover, the Court's decisions defining the scope of Batson involved racial discrimination but were "premised on equal protection principles that apply equally to gender discrimination."(889) Strict scrutiny was the equal protection standard that applied in the peremptory challenge cases involving race; therefore, strict scrutiny applies equally to gender.(890)

J.E.B. embraced an equal protection of sameness and differences. Stereotypical differences between women and men were used to justify peremptory challenges.(891) Justice Blackmun concluded that even if there were some validity in such gender stereotypes,(892) these were the same stereotypes that had been used to justify the exclusion of women from juries.(893) Additionally, not all members of a gender fit the stereotypes.(894)

Justice Blackmun's most important contributions were an acceptance of the value of differences and an understanding that half-done things are incomplete. Quoting Justice Douglas in Ballard that "`the two sexes are not fungible,'"(895) he agreed that differences can be equally valuable. Differences must be acknowledged while exclusionary actions based on gender or race should be eliminated. Differences should not lead to exclusion from a jury but are the reason for inclusion on a jury. Differences must be welcomed and integrated. By intertwining sameness and differences, Justice Blackmun took a major step for our diverse democratic society. Both sameness and differences must coexist in all of our -political processes; not just at the ballot box but on our juries.(896)

Failure to integrate those who are different results in multiple harms: to the litigants who are not judged by their peers;(897) to those excluded from our juries who are denied participation in a political process;(898) and to the community which suffers when the state perpetuates stereotypes.(899) Therefore, the community loses confidence in a judicial system that allows such discrimination and that is deprived of the viewpoints of all its members. The Constitution requires equal opportunity for all citizens to participate in the administration of justice.(900) Exclusion on the basis of race or gender jeopardizes "the integrity of our judicial system."(901) It creates the impression that the "`deck has been stacked' in favor of one side."(902) The insight that "`[t]he verdict will not be accepted or understood [as fair] if the jury is chosen by unlawful means'"(903) was the thesis underlying Susan Glaspell's A Jury of Her Peers and has been brought home in our time by the reactions to the initial Rodney King verdict.

There are weaknesses in Justice Blackmun's opinion. He perceived harm in the exclusion of women primarily in rape, sexual harassment, and paternity cases,(904) but he failed to see the broad spectrum of issues, including homicide, where women may have different views than men. He cited only studies in rape cases to show differences between female and male jurors.(905) Perhaps because of the limited databases with which lawyers are familiar, namely LEXIS and WESTLAW, all the Justices writing in J.E.B. demonstrated a lack of familiarity with the substantial sociological literature on moral attitudes of women and men. This literature includes Carol Gilligan's classic In a Different Voice, Sandra Janoff's The Influence of Moral Reasoning on Legal Education, and the specific studies of actual and mock jurors' verdicts in killings by abused women.

Finally, in dictum, which perhaps was required to achieve a majority consensus, Justice Blackmun sought to assuage those who were opposed to the total elimination of peremptory challenges. Opponents of extending Batson to gender relied on a slippery slope argument that such an exception would lead to the elimination of all peremptories based on any unexplained factors and that this, in turn, would result in the destruction of peremptory challenges. Justice Blackmun answered that the elimination of peremptory challenges based on gender would not conflict with a "legitimate interest in using such challenges . . . to secure a fair and impartial jury."(906) Jurors who cannot be fair and impartial can be challenged for cause.(907) Given the need for diversity of viewpoint on the jury and the difficulty of finding willing jurors, it is questionable whether any valid purpose is served by peremptory challenges.(908)

The opportunity for discrimination based on gender and for the continued underrepresentation of women on juries was left open with the statement: "Even strikes based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext."(909) Examples noted that challenges to all persons with military experience would disproportionately affect men, while challenges to all nurses would disproportionately affect women.(910) This dictum raised the serious issue of whether the Court intended to prohibit disparate treatment gender discrimination but to allow such discrimination based on disparate impact. Could this be used as the 1990s version of Emmet O'Neal's 1920 suggestion that exclusionary juries be created through indirect means such as poll taxes and occupational prerequisites?(911)

In his dissent, Justice Scalia argued that there was no "`discrimination and dishonor'" in being subjected to race- or gender-based strikes.(912) Justice Blackmun countered that segregation and the total exclusion of women from juries "are now unconstitutional even though they once co-existed with the Equal Protection Clause."(913) Past discrimination against women could no longer be used to justify continued discrimination.

Justices Kennedy and O'Connor in their concurring opinions both failed to complete the adjustment to diversity. Justice Kennedy's second-generation diversity view permits us to look different but demands that we think the same.(914) He is willing to let others into the club but condemns us when we complain about the segregated clubhouse and lack of women's rooms.(915) He demands that others not bring their life experiences with them but rather adopt wholesale the stories of the predominant group. He does not understand that his stories are stories. He can not differentiate between discrimination based on negative gender stereotypes and valuing the unique life experiences and views of others.

Justice O'Connor knows that "like race, gender matters" and that " [i]ndividuals are not expected to ignore as jurors what they know as men or as women."(916) However, Justice O'Connor is like my friend, the Philadelphia litigator who has trouble getting beyond the immediate advantage of removing those not prone to see the world as the litigator wishes them to see it. She concurred in prohibiting the use of discriminatory peremptory challenges by the state but was unwilling to deprive private parties of their immediate advantage.(917) She, like Justice Kennedy, had trouble distinguishing between perpetuating negative biases and respecting different views of the world.

Justice O'Connor's information base, like that of Justice Blackmun, is limited in that she cited only one study showing that female jurors and male jurors were likely to vote differently in rape cases.(918) She did not draw from the multiple studies in other areas, including abuse of women.(919) Differences exist between men and women and among women of different ethnic backgrounds. Differences exist among African Americans, Hispanic Americans, Native Americans, Greek Americans, and between the men and women of each group. But those differences are exactly what make individuals valuable as members of juries composed of a fair cross section of our society.

Justice O'Connor was the only justice to raise the issue of the abused woman: She asked whether the abused woman would be precluded "from using her peremptory challenges to ensure that the jury of her peers contains as many women members as possible?"(920) Justice O'Connor does not recognize that half-finished tasks are incomplete. She does not understand that serving on a jury is part of a learning process that will not be successful if we educate only women about abuse and not the men who abuse and who continue to hold power disproportionately in our society. Only by communication and education will we end woman abuse and other gender discrimination.

Chief Justice Rehnquist dissented in J.E.B., just as he dissented in every Supreme Court decision giving women jury rights.(921) Joined by Associate Justices Scalia and Thomas, Chief Justice Rehnquist refused to apply a heightened level of scrutiny to a gender classification.(922) He placed the nonconstitutional right to peremptory challenges above the constitutional rights of women under the Equal Protection Clause of the Fourteenth Amendment and the fair cross section requirement of the Sixth Amendment.(923)

Unfortunately, Purkett v. Elem,(924) a short per curiam opinion, raised serious questions with regard to proof of unconstitutional discrimination. Once a prima facie case of racial discrimination was shown, the opinion allowed the party exercising peremptory challenges against members of a racial group merely to produce evidence of any explanation.(925) It did not require "a reason that makes sense."(926) The explanation could be "implausible or fantastic;"(927) "silly or superstitious."(928) As long as any reason other than race is produced, the opponent of the strike has to prove purposeful discrimination.(929) It remains to be seen in practice what kind of evidence, and how much of it, will be needed to overcome a nonsensical explanation. We will discover, as a society,whether yet another barrier to women's jury service has been erected.


The trip through time and place is stopping in Philadelphia in November 1995. Through bits and pieces, I have tried to quilt together what we know of woman abuse at this time and how we can best address the problem. The major lessons from Susan Glaspell's A Jury of Her Peers are that men and women can have different views of the world and that women have been excluded from political processes so that our views were unrepresented. How much has changed since Susan Glaspell first produced Trifles in Provincetown, Massachusetts in 1916?

In political terms, women received the right to vote in 1920, but it was not until the 1980s that a consistent and predictable gender gap was identified.(930) In the 1992 presidential elections, 46% of women and 41% of men voted for Bill Clinton(931) and women were more likely than men to support women candidates.(932) Once elected, women public officials are concerned about different issues than men, including issues such as woman abuse, sexual harassment, rape, day care, and pay equity.(933)

Women are no longer totally excluded from juries, but our inequitable family and home-care responsibilities prevent our equal participation. Peremptory challenges cannot openly be used against women, but they can be used in ways that result in gender discrimination. The Supreme Court has not yet held that the Fourteenth Amendment's promise of equal protection for all our citizens and the Sixth Amendment's guarantee of trial by a jury of our peers outweigh the historic tradition of peremptory challenges, which use negative stereotypes to eliminate individual members of groups from juries.

In substantive criminal law, there have been some advances in recognizing the world of abused women. Some jurisdictions have recognized the abused woman's sense of imminence in both self-defense and provocation by elongating time to allow testimony on a history of abuse. Some domestic violence legislation has required prompt and adequate police responses, protective orders, and shelters. We are beginning to see the possibility of a jurisprudence of care.

Yet there were legal changes in earlier periods that were meant to eliminate woman abuse. In the nineteenth century, there were the right to divorce, the elimination of the rule of thumb, the Married Women's Property Acts, and, finally, the combination of the Nineteenth Amendment's right to vote with the Eighteenth Amendment's prohibition of alcohol. All were hailed as major steps toward the elimination of woman abuse and yet the abuse continued, largely unchecked by law and unacknowledged by society until the 1970s. The issue of woman abuse was publicly ignored for fifty years. Hopefully, the second wave's concern for woman abuse and the entry of a substantial number of women into all our political processes will succeed where earlier efforts failed.

We cannot eliminate the long-standing pattern of woman abuse by just changing a part, or even a number of parts, of the legal system. We must change public perceptions of reality--both those of men and women. We must change the views of those who enforce our laws: police, prosecutors, judges, governors, and parole boards. We must change the views of our everyday citizens: those who abuse, those who are abused, and those who are their relatives, friends, and neighbors. All of these citizens serve on juries. Until there is a profound societal understanding of the depth and seriousness of woman abuse, legal changes alone will not lead to its elimination.

(1.) Critical Legal Studies Feminists Conference (May 31-June 2, 1985) (Pine Manor College). (2.) The play was first produced in 1916 and first published in 1920. Susan Glaspell, Trifles in PLAYS I (1920). The film version shown at the conference was A JURY OF HER PEERS (Texture Films, 1981). Another film version was shown on Alfred Hitchcock Presents: 4 Jury of Her Peers (NBC television broadcast, Dec. 26, 1961). All references to the play Trifles in this article will be to Susan Glaspell, Trifes in LIFTED MASKS AND OTHER WORKS 259 (Eric S. Rabkin ea., 1993) [hereinafter Tripes].

(3.) ARISTOPHANES, LYSISTRATA (Douglas Parker trans., 1964).

(4.) Susan Glaspell, A Jury of Her Peers, EVERYWEEK, Mar.5, 1917, 1917, at 42; reprinted in THE BEST SHORT STORES OF 1917, at 256 (Edward J. O'Brien ea., 1918) [hereinafter BEST SHORT STORIES]. All references to the short story A Jury of Her Peers in this article will be to Susan Glaspell, A Jury of Her Peers, in LIFTED MASKS AND OTHER WORKS 279 (Eric S. Rabkin ea., 1993) [hereinafter A Jury of Her Peers]. (5.) "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." U.S. CONST. amend. XIX.

(6.) See infra note 775 and accompanying text (discussing resistance by the states to women jurors). (7.) See Lani Guinier et al., Becoming Gentlemen: Women's Experiences at One Ivy League Law School, 143 U. PA. L. REV. 1, 99 (1994) [hereinafter Guinier, Becoming Gentlemen] (asserting that mere access to legal education by women is not enough because quality of experience differs); see generally Herma H. Kay, Second Generation Diversity Issues Program, 25 SYLLABUS--A.B.A. SEC. LEGAL. ED. & ADMISSIONS TO THE BAR, 14 (Fall 1994) (discussing role playing exercises used to highlight different perceptions of workplace situations by minority and majority lawyers).

(8.) See generally CAROL GILLIGAN, IN A DIFFERENT VOICE--PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982). (9.) For analysis of problems of communications between men and women, see generally CONSTRUCTING AND RECONSTRUCTING GENDER--THE LINKS AMONG COMMUNICATION. LANGUAGE, AND GENDER (Linda A.M. Perry et al., eds., 1992); GENDER AND CONVERSATIONAL INTERACTION (Deborah Tannen ea., 1993); CAMILLE ROMAN ET AL., THE WOMEN AND LANGUAGE DEBATE: A SOURCEBOOK (1994); DEBORAH TANNEN, You JUST DON'T UNDERSTAND: WOMEN AND MEN IN CONVERSATION (1990). (10.) See Luigi Pirandello, Six Characters in Search of an Author, in NAKED MASKS: FIVE PLAYS BY LUIGI PIRANDELLO 211 (Eric Bentley ea., 1952). Six Characters in Search of an Author has been described as "[a] play within [a] play within [a] play within [a] play...." ERIC BENTLEY, THE PIRANDELLO COMMENTARIES 67 (1986). William Shakespeare also used the device of a play within a play. See WILLIAM SHAKESPEARE, HAMLET act 2, sc. 2, 11.600-01 ("The play's the thing Wherein I'll catch the conscience of the king.") (Peter Alexander ea., 1952); see also A COMPANION TO PIRANDELLO STUDIES 213 (John L. DiGaetani ea., 1991) (differentiating Pirandello's and Shakespeare's use of a play within a play); LIONEL ABEL, METATHEATRE: A NEW VIEW OF DRAMATIC FORM 48-49 (1963) (identifying Hamlet's core characters as playwrights). (11.) The literature discussing the use of stories in legal education is vast. See, e.g., ROBIN WEST, NARRATIVE, AUTHORITY AND LAW (1993) (arguing that narratives facilitate understanding of experiences of those disenfranchised and change societal moral beliefs and assessments of law); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 280-85 (1994) (asserting that storytellers should clarify their claims about finding truth in "many reality" stories); Nancy L. Cook, Outside the Tradition: Literature as Legal Scholarship, 63 U. CIN. L. REV. 95, 128-54 (1994) (encouraging legal professionals to experiment and grow through use of stories); Terree E. Foster, But Is It Law? Using Literature to Penetrate Societal Representations of Women, 43 J. LEGAL EDUC. 133, 136-38 (1993) (arguing that studying literary images of women may promote understanding that will negate stereotypes in legal system); Melissa Harrison, A Time of "Passionate Learning": Using Feminism, Law, and Literature to Create a Learning Community, 60 TENN. L. REV. 393, 412-27 (1993) (arguing that use of feminism and literature may help women law students develop sense of community and strength and that these classes should not be peripheral in curriculum); Carolyn Heilbrun & Judith Resnik, Convergences: Law, Literature, and Feminism, 99 YALE L.J. 1913, 1936-42 (1990); Richard H. Weisberg, Three Lessons From Law and Literature, 27 LOY. L.A. L. REV. 285, 287 (1993) (advocating that all law professors use literary techniques in classroom); Marijane Camilleri, Comment, Lessons From Law in Literature: A Look at the Movement and a Peer at Her Jury, 39 CATH. U. L. REV. 557, 563-68 (1990) (concluding that it is natural for lawyers to learn about true human nature from literature); John Fischer, Note, Reading Literature/Reading Law: Is There a Literary Jurisprudence?, 72 TEX. L. REV. 135, 152-59 (1993) (observing need for inclusion of works by victimized groups in law and literature movement). (12.) See generally James M. Vache, The Narrative Experience: Telling Stories in School, L. TEACHER (Institute for Law School Teaching, Spokane, Washington), Spring 1994, at 12 (relating author's experience of hearing stories as student and advocating their use in classroom as reminder of human dimension of law). (13.) Morris L. Cohen Et Al., How to Find the Law 15-16 (9th ed. 1989). (14.) See generally 10 New Catholic Encyclopedia 984 jack Heraty & Associates, Inc. 1981) (1967) (comparing parable, simile and metaphor). (15.) Professor Richard Delgado notes, "Empowered groups long ago inscribed their favorite narratives--ones that reflected their sense of the way things ought to be--into myth and culture." Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 Vand. L. Rev. 665, 676 (1993). (16.) "[J]uridical models [are] used against subordinate groups by making inequality officially nonexistent and by using apparently neutral rules that have far from neutral effects." Kim Lane Scheppele, Manners of Imagining the Real, 19 Law & Soc. Inquiry 995, 997 (1994) [hereinafter Scheppele, Imagining the Real]. (17.) Each of us sees the world through a framework based on our experiences and relationships in the society we inhabit. Patricia Yancey Martin & R. Marlene Powell, Accounting for the "Second Assault": Legal Organizations' Framing of Rape Victims, 19 Law & Soc. Inquiry 853, 859 (1994). (18.) "[B]oth the law and the facts are constructed from interpretive practices...." Scheppele, Imagining the Real, supra note 16, at 1022. Robin West has explained why outsiders use narratives.

[N]arrativity. . . is a necessary part of moral claims for change made on behalf of those who have

traditionally been excluded from the processes of law. If our moral convictions are grounded in

conceptions of our shared nature that are in turn informed by our own experiences and the experiences

of others, and if some experiences are routinely silenced by empowered groups and our moral

convictions consequently skewed, then the imbalance must be corrected by the telling in narrative form

of the heretofore silenced experiences. WEST, supra note 11, at 10; see generally Patricia Ewick & Susan S. Silbey, Subversive Stones and Hegemonic Tales: Toward a Sociology of Narrative, 29 L. & Soc'y Rev. 197 (1995); Marc A. Fajer, Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal Scholarship, 82 GEO. L.J. 1845 (1994).

Another way to include all groups and yet challenge the underlying premises of existing legal doctrine and stimulate imaginative solutions is to have students draft statutes rather than simply analyze existing statutes or case law. Since our legal system now operates almost completely on statutory law rather than judge made common law, students should be sensitized and trained in the policy choices that go into statutory drafting. (19.) See Jane C. Murphy, Lawyering for Social Change: The Power of the Narrative in Domestic Holence Law Reform, 21 HOFSTRA L. Rev. 1191, 1259-74 (1993) (asserting that legal storytelling may create empathy in male decisionmakers for abused women).

(20.) See infra notes 177-84 and accompanying text (discussing relegation of women and women's issues to private sphere and exclusion of women from public sphere). (21.) See generally Mary I. Coombs, Telling the Victim's Story, 2 Tex. J. Women & L. 277 (1993) (discussing danger for women in telling their stories of sexual violation). (22.) See infra notes 413-71 and accompanying text (discussing patterns of abuse and high incidence of abuse among all groups). (23.) Krikos, Annual Conference, In Celebration of Greek Women (Oct. 17, 1987) (Lincoln Center Campus, For&am University).

(24.) The case Susan Glaspell reported was State v. Hossack, 89 N.W. 1077 (Iowa 1902). (25.) Linda Ben-Zvi, "Murder, She Wrote": The Genesis of Susan Glaspell's Trifles, 44 THEATRE J. 141, 143 (1992) [hereinafter Ben-Zvi, Genesis of Trifles]. (26.) Id. at 144.

(27.) Dialogue in literature is "a compromise of the speaker's intentions, being as it is not entirely a representation to oneself, but must make its way in the world of discourse already inhabited by others." Scheppele, Imagining the Real, supra note 16, at 1021.

(28.) Linda Ben-Zvi, Susan Glaspell 's Contributions to Contemporary Women Playwrights, in Feminine Focus--The New Woman Playwrights 147, 157 (Enoch Brater ed., 1989) [hereinafter Ben-Zvi, Women Playwrights).

The leaders of the first wave of American feminism were aware of the importance of language. "In the early part of this century, modernist women writers like Virginia Woolf and Dorothy Richardson debated the question of the 'woman's sentence,' searching for a literary language that would fit the female experience they sought to express." DEBORAH Cameron, Feminism and Linguistic Theory 1 (1992). (29.) See generally WEST, supra note 11, at 179-180 (discussing how women's suffering is different from men's and is often "dismissed as trivial"); Anita Bernstein, Law, Culture, and Harassment, 142 U. PA. L. Rev. 1227 (1994) (describing how phrase "sexual harassment" emerged). (30.) Richard Posner, Law and Literature--A Misunderstood Relation 113 (1988). (31.) A Jury of Her Peers, supra note 4, at 282, 284,296, 302, 303.

(32.) The Encyclopaedic Dictionary 3849 (1897) (defining queer as strange). Today the word can also refer to sexual orientation. See The Oxford English Dictionary 1014 (2d ed. 1989). (33.) A Jury of Her Peers, supra note 4, at 284.

(34.) See The Oxford English Dictionary 522 (2d ed. 1989) (defining a trifle as "[a] matter of little value or importance"). Robin West has recognized that "women's distinctive, gender-specific injuries are now or have in the recent past been . . . described as trivial . . . " West, supra note 11, at 180.

(35.) Ben-Zvi, Genesis of Trifles, supra note 25, at 156; see infra text accompanying note 129 (discussing Susan Glaspell's connection to movement to have women use their birth names). (36.) Ben-Zvi, Genesis of Trifles, supra note 25, at 153-54. (37.) A Jury of Her Peers, supra note 4, at 279.

(38.) Id. at 293. There are many examples of half-finished things. "Her eye was caught by a dish towel in the middle of the kitchen table.... One-half of it was wiped clean, the other half messy. Her eyes [turned] to the bucket of sugar and the half empty bag beside it. " Id

(39.) See Camilleri, supra note 11, at 582.

(40.) Id. at 585.

(41.) A Jury of Her Peers, supra note 4, at 283.

(42.) Id. at 280.

(43.) Id. at 282-83.

(44.) Id. at 283.

(45.) Id. at 299.

(46.) Id. at 291. Abusive men often use money as a device to control abused women. See infra notes 455-56 and accompanying text.

(47.) A Jury of Her Peers, supra note 4, at 283.

(48.) Id. Perhaps this statement is the forerunner to the line used by the television character Sergeant Friday who told women, "Just the facts, ma'am, just the facts." See Kim Lane Scheppele, Just the Facts Ma 'am: Sexualized Holence, Evidentiary Habits, and the Revision of Truth, 37 N.Y.L. Sch. L. Rev. 123 (1992) [hereinafter Scheppele, Just the Facts Ma'am] (arguing that abused women's testimony often is discredited, particularly when they delay or change their stories).

(49.) A Jury of Her Peers, supra note 4, at 289,293.

(50.) Id. at 286.

(51.) Id. at 293.

(52.) Id. at 287.

(53.) "`Oh, well', said Mrs. Hale's husband, with good natured superiority, `women are used to worrying over trifles.'" Id.

(54.) Id at 288-89.

(55.) Id. at 289.

(56.) Id.

(57.) Id. at 305.

(58.) Id. at 290.

(59.) Id. at 294.

(60.) Id.

(61.) See generally 2 Sophocles, Antigone in Sophocles 312 (F. Storr trans., 1912) See also Posner, supra note 30, at 112 (comparing Antigone's natural law to Creon's positive law). (62.) A Jury of Her Peers, supra note 4, at 294-95. (63.) Ben-Zvi, Genesis of Trifles, supra note 25, at 153.

(64.) A Jury of Her Peers, supra note 4, at 295.

(65.) Id.

(66.) Id. at 296.

(67.) Id.

(68.) Id at 295.

(69.) Id Quilting and knotting, also called tying, are two different methods of holding the soft filler in place in the individual pieces that make up a quilt. Thelma R. Newman, Quilting, Patchwork, Applique, and Trapunto 62, 74, 238 (1978). Quilting is a more artistic, but time-consuming, method of in-and-out stitching. Carter Houck, The Quilt Encyclopedia Illustrated 131 (1991). Knotting is a single stitch that is the simplest, quickest way to attach the material together. Id; see generally Judy Hopkins, Fit To Be Tied (1990). That Minnie Foster Wright was going to knot rather than quilt the individual pieces of her quilt was symbolic both of the joyless, spartan life Mr. Wright had forced on her and her method of killing him. (70.) A Jury of Her Peers, supra note 4, at 306 (71.) Id at 297.

(72.) Id at 299.

(73.) Id at 303.

(74.) Id. at 299-300.

(75.) Id at 302.

(76.) Id. at 300.

(77.) Id. at 301-02.

(78.) Id. at 302.

(79.) Id. at 303 (emphasis in original).

(80.) Id.

(81.) Id (emphasis in original).

(82.) Id at 304.

(83.) Id

(84.) Id at 306.

(85.) Id The dead canary is central to Susan Glaspell's story and to the reality of women's lives. Two incidents mark its importance for me. In Canberra, Australia's capital, l saw a traveling exhibition of paintings by Mexican women artists. In one painting, a woman was framed in a window with shutters half-closed with a bird in a cage on the ledge in front of her. The image of a bird in a cage has long been used as a symbol of the constraints that surround the lives of women. The most powerful use of the metaphor in recent times is found in Maya Angelou, I KNOW WHY THE CAGED BIRD SINGS (1969). Justice Brennan stated in Frontiero v Richardson, traditionally, such [gender] discrimination was rationalized by an attitude of 'romantic paternalism,' which in practical effect, put women, not on a pedestal, but in a cage." 411 U.S. 677, 684 (1973) (plurality) (allowing military dependent benefits to female spouses but not to male spouses violated equal protection); see generally Roberta Smith, Space is Spare for Women's Work at the Modern, N.Y. TIMES, June 24, 1994, at C26 (noting that women artists use bird cages).

In the second incident, the wife of a colleague responded to A Jury of Her Peers by sending me an article by an author who researched American frontier architecture. Roger Welsch, A Song for the Pioneers, AUDUBON, Nov.-Dec. 1992, at 112 [hereinafter Audubon]. This article was later published in condensed form in Song for a Pioneer, READER'S DIGEST, Mar. 1993, at 73. After examining more than 1000 photographs of sod huts, the author discovered dozens of photographs that contained pictures of caged canaries. Audubon at 113. He mentioned the canaries when lecturing to a group of farm families, and, after the lecture, a member of the audience shared the story of her great-grandparents, who were sod busters in Nebraska. One of her great-grandmother's few final possessions was a small wooden box containing a dead canary. The photographs of the family's first sod house showed the outline of a bird cage and the canary. For the pioneer farm wife left at home every day, the canary in the cage simultaneously symbolized both the constraints on her life and the only light, color, and song in her life. Id

(86.) Ben-Zvi, Women Playwrights, supra note 28, at 154. Robin West claims "that the narrative voice can convey the subjective feel of experiences in a way that triggers understanding of others and an emphatic response to their plight, thereby changing our moral beliefs and our moral assessment of law...." West, supra note 11, at (87.) See Martha Minow, Making All The Difference 220 (1990) (explaining that women in A Jury of Her Peers hide evidence because law would not fairly assess abusive situation). (88.) See generally James D. Hart, The Oxford Companion To American Literature 316 (4th ed. 1965) (listing and briefly describing Glaspell's works); Judith Olauson, The American Woman Playwright--A View of Criticism and Characterization 22 (1981) (discussing Glaspell's Pulitzer Prize winning play, Alison's House); Ben-Zvi, Women Playwrights, supra note 28 (praising Glaspell's achievements and her contributions to' contemporary women playwrights); Edythe M. McGovern, Susan Glaspell, in American Women Writers 268 (Langdon L. Faust ea., 1988) (examining themes in Glaspell's writings). Arthur Waterman, Susan Glaspell's biographer, examined her life, values, and works at length. ARTHUR E. WATERMAN, SUSAN GLASPELL (1966).

(89.) Ben-Zvi, Women Playwrights, supra note 28, at 163 n.9.

(90.) McGovern, supra note 88, at 270.

(91.) Ben-Zvi, Women Playwrights, supra note 28, at 147.

(92.) Ben-Zvi, Genesis of Trifles, supra note 25, at 150.

(93.) Id at 143.

(94.) 89 N.W. 1077 (Iowa 1902); see Ben-Zvi, Genesis of Trifles, supra note 25, at 143-145. (95.) Ben-Zvi, Genesis of Trifles, supra note 25, at 145.

(96.) Id at 145.

(97.) Id

(98.) Id; see also infra notes 643, 647,692,695-96 and accompanying text (discussing fact that women who use violence against their abusers are often viewed as insane). (99.) Ben-Zvi, Genesis of Trifles, supra note 25, at 145.

(100.) Id at 146 n.l4.

(101.) Id at 146.

(102.) Id

(103.) Id

(104.) Id

(105.) Hossack, 89 N.W. at 1077-78.

(106.) Id at 1078; see infra notes 448-56 and accompanying text (categorizing multiple control tactics used by abusers). (107.) Hossack, 89 N.W. at 1078; see generally infra notes 430-43 and accompanying text (discussing attempts by abused women to seek help). (108.) See infra notes 466-68 and accompanying text (noting high rate of correlation between woman abuse and child abuse).

(109.) Hossack, 89 N.W. at 1078.

(110.) Id at 1079-80.

(111.) Id at 1078.

(112.) Id

(113.) Id

(114.) Id

(115.) Id

(116.) Id

(117.) Id

(118.) Id

(119.) Police departments and women's shelters report an increase in woman abuse on holidays. See Christie Lave, Holidays Worsen Domestic Violence, Stress Exacerbates Existing Tensions in Families, Wichita Eagle, Jan. 2, 1994 at 1; Frank Reeves, A Season for Family Violence, Phila. Inquirer, Dec. 25, 1988, at M3. (120.) Hossack, 89 N.W. at 1078.

(121.) Id at 1079.

(122.) Id at 1080.

(123.) Id at 1079-81.

(124.) Ben-Zvi, Genesis of Trifles, supra note 25, at 151.

(125.) Id at 151-52.

(126.) Waterman, supra note 88, at 45-48, 52, 57-58.

(127.) Ben-Zvi, Genesis of Trifles, supra note 25, at 160-61.

(128.) Id at 160.

(129.) Id at 156 n.28. Lucy Stone edited the Woman's Journal, a feminist newspaper that exposed the plight of abused women and advocated legislative changes on behalf of abused women. Elizabeth Pleck, Domestic Tyranny--The Making of Social Policy Against Family Violence From Colonial Times to the Present 02-03 (1987). (130.) Waterman, supra note 88, at 57-58.

(131.) Id at 52.

(132.) McGovern, supra note 88, at 269.

(133.) Best Short Stories, supra note 4, at 256.

(134.) Ben-Zvi, Genesis of Trifles, supra note 25, at 160.

(135.) Aristotle, The Art of Rhetoric 125 (Hugh C Lawson-Tancred trans., 1991).

(136.) Ben-Zvi, Women Playwrights, supra note 28, at 147.

(137.) Waterman, supra note 88, at 49.

(138.) See The Oxford Companion to English Literature 1016 (Margaret Drabble ea., 5th ed. 1985) (discussing the unities).

(139.) hying Browne, Wife-Beating and Imprisonment, 25 AM. L Rev. 551 I (1891).

(140.) Id. at 553 (quoting William Shakespeare, The Taming of the Shrew, act 3, sc. 2, ll. 226-28 (Peter Alexander Ed., 1952)).

(141.) Id. (quoting William Shakespeare, The Taming of the Shrew, act 5, sc. 2, ll. 146-47,155-56). (142.) Id. (quoting William Shakespeare, The Taming of the Shrew, act 2, sc.1, l. 219). (143.) Id.

(144.) Id.

(145.) A Jury of Her Peers has become a popular law school teaching tool. See Robert M. Cover et al., Procedure 1167 (1988) (using A Jury of Her Peers as ani ntroduction to the American jury system); Foster, supra note 11, at 143 (using A Jury of Her Peers for a discussion of gender, morality, and law); see generally, Camilleri, supra note 11, at 557 (using A Jury of Her Peers to examine the law and literature movement and its relation to legal education).

(146.) The notion of an affirmative duty to act may be gaining mainstream acceptance. See Ken Myers, Double Honors, Nat'l L.J., Jan. 24, 1994, at 4 (announcing that Steven Heyman received an Honorable Mention in the 1994 Scholarly Papers Competition of the Association of American Law Schools for his article Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673 (1994)).

(147.) See generally, Coombs, supra note 21, at 304 n.106 (stating that "[d]ue to gendered perceptions, a woman can be sexually violated by a man who does not believe he is acting wrongfully). (148.) See generally Sandra Janoff, The Influence of Legal Education on Moral Reasoning, 76 MINN. L. Rev. 193 (1991) (presenting results of study that first year law school had substantial impact on women's moral reasoning but insignificant effect on men's moral reasoning); Guinier, Becoming Gentlemen, supra note 7, at 2, 6 (concluding that women's experiences at University of Pennsylvania Law School were "markedly" different from men's experiences and that institutional changes would improve quality of legal education for all students); Nina Crimm, A Study: Law School Students ` Moral Perspectives In The Context Of Advocacy And Decision-Making Roles, 29 NEW ENG. L. Rev. 1, 29 (1994) (concluding that male and female law students at mid-point of their legal educations perceive role of advocate as detached and stoic rather than compassionate and caring); Joan M. Krauskopf, Touching the Elephant: Perceptions of Gender Issues in Nine Law Schools, 44 J. Legal Educ. 311, 312 (1994) (concluding that "differences in perception and treatment based on gender impede educational and professional progress of women in such numbers that legal educators should act to minimize differences and their negative effects"); William F.Kullman, Feminist Methodologies in the Law School Classroom: Listening for a Change, 4 Temp. Pol. & Civ. Rts. L. Rev. 117, 121 (1994) (explaining that use of feminist methodologies in law school classroom can improve learning process); Linda F.Wightman, Women in Legal Education: A Summary of Data Comparing The Law School Experiences of Men and Women, Presented at the Association of American Law Schools Annual Meeting (Jan. 1995) (concluding that "[b]oth white women and women of color tended to be less satisfied with and more critical of the quality of instruction than men") (available from the Law School Admission Council, Inc.).

(149.) See Janoff, supra note 148, at 195, 237 (finding that after one year of law school women were likely to resolve moral dilemmas by rights-oriented approach than by care-oriented approach). (150.) Id. at 194-95.

(151.) Id. at 193 (citing American Bar Assiciation Section of Legal Education and Admissions to the BAr, A Review of Legal Education in the United States: Fall, 1990, Law Schools and Bar Admission Requirements 50 (1990)).

(152.) Id.

(153.) Id.

(154.) Id.

(155.) See Marina Angel, Women in Legal Education: What it's Like to be Part of a Perpetual First Wave or the Case of the Disappearing Women, 61 TEMP. L. Rev. 799, 836-37 (1988) [hereinafter Angel, Women in Legal Education] (stating that male-dominated beliefs and attitudes prevail in both substantive law and classroom experience and providing example that law students are still trained in concept of "the reasonable man" and jokes are still being made about "the reasonable woman being unknown to the common law" ).

(156.) See id. at 809-10 n.61 ("[A] good law school teacher has to begin by assuming that the minds of her students have to be changed, a notion encapsulated in the cliche that law school is supposed to teach a student to think like a lawyer."); see also Guinier, Becoming Gentlemen, supra note 7, at 46-47 ("[S]everal women who described socratic-style questioning as intimidating, stated matter-of-factly that they could not learn in an intimidating environment."). (157.) Professor Margaret Montoya described law school classrooms in powerful political teens. Rooms designed for hierarchy, for alienation, for dread and for silence. Rooms carpeted in blood red, with unpainted concrete walls, bolted tables and legless inquisitional chairs that can only face forward. Rooms watched over by mirthless white, male, privileged sentries ensconced in their gilded frames. Rooms that were not conceived for multicultural purposes. Margaret Montoya, Rompiendo Silencio, 1994 Salt Equalizer 8, 9-10. (158.) See Janoff, supra note 148, at 229-30 n. 170 ("The first year of law school produced changes in the caring responses of women and men that were significantly different. The women's caring responses decreased, while the men's did not shift significantly."). It is possible that at least some women law students will go on to rediscover their roots. They will, however, probably have to do so largely without the help of legal educators or the organized bar.

(159.) Id. at 218 n.l33, 222 n. 144.

(160.) Id. at 194, 229-30.

(161.) Id. at 232.

(162.) Guinier, Becoming Gentlemen, supra note 7.

(163.) Id. at 3. ("[W]e find strong attitudinal differences between women and men in year one, and yet a striking homogenization by year three.")

(164.) Id. ("By the end of their first year in law school, men are three times more likely than women to be in the top 10% of their law school class." (emphasis added)). (165.) See id. at 3-4 ("Some complain that they can no longer recognize their former selves, which have become. submerged inside what one author has called an alienated `social male.'") (citing Christine A. Litteleton, Reconstructing Sexual Equality, 75 Cal. L. Rev. 1279, 1308-09 (1987)). (166.) See id. at 4-5 (explaining chat for these women, "learning to think like a lawyer means learning to think and act like a man").

(167.) Professor Guinier reported on the "game of `asshole bingo' in which the object is to identify those `assholes' who talk in class." Id. at 51 n.128. However, "male `assholes' [were] referred to as `nerds'; women `assholes' [were] referred to as `man-hating lesbians.'" Id. Thus, by 1994, women were queer both in the sense of strange and in the sense of sexual orientation. Id. at 82. (168.) Id. at 44, 47.

(169.) 117 N.E .656 (Mass. 1931).

(170.) Welosky, 117 N.E. at 658 (citing Mass. Gen. L. ch. 234, [Sections] 1

(1784) (amended 1948)). (171.) Id. at 659-61.

(172.) Id. at 665.

(173.) Seth Mydans, The Police Verdict: Los Angeles Policemen Acquitted in Taped Beating, N.Y. Times, Apr. 30, 1992, at Al; Barbara A. Babcock, A Place in the Palladium: Women's Rights and Jury Service, 61 Cinn. L. Rev. 1139, 1140 (1993). (174.) See infra notes 823-46 and accompanying text (discussing Taylor v. Louisiana, 419 U.S. 522 (1975)). (175.) Our world is an increasingly diverse one. Not just the world of late twentieth century America, but the world that includes five million Muslims, mostly from North Africa, in France, Yousseff M. Ibrahim, Europe's Muslim Population: Frustrated, Poor, and Divided N.Y. Times, May 5, 1995, at Al, A12, almost two million Turks and Kurds in Germany, id., and thousands of Asian students from communist countries who chose to stay in liberated Budapest. The first language I heard at the Saturday market of Wollongong, Australia was Arabic and then Greek, Spanish, Turkish, and a large number of Asian and middle European languages. (176.) Some have advocated the introduction of cultural evidence in American trials in order to mitigate the degree of criminality or to negate it completely. See generally Holly Maguigan, Cultural Evidence and Male Violence: Are Feminists and Multiculturalist Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36 (1995) (advocating purportedly measured approach of cultural evidence relevant to mens rea).

(177.) See Catharine A. MacKinnon, Feminism Unmodified 32-33, 93-102 (1987) (arguing that right to privacy granted to women by abortion decisions serves to subordinate their needs to social imperatives of men). (178.) See Ruth Gavison, Feminism and the Public/Private Distinction, 45 Stan. L. Rev. I, 22 (1992) (arguing that women are represented unequally in public sphere and are relegated to private sphere in manner that burdens them and denies them independence). (179.) Professor Catharine MacKinnon coined the slogan, "the personal is political." MacKinnon, supra note 177, at 100; see also Jane M. Cohen, Private Violence and Public Obligation: The Fulcrum of Reason, in The Public Nature of Private Violence 349 (Martha A. Fineman & Roxanne Mykitiuk eds., 1994) [hereinafter Public Nature of Private Violence] (arguing that domestic violence occurring in private creates public obligation). (180.) See Elizabeth M. Schneider, The Violence of Privacy, in Public Nature of Private Violence, supra note 179, at 36 (asserting that concepts of privacy permit, reinforce, and encourage violence against women by discouraging police and others from becoming involved in battering situations).

(181.) See Laura W. Stein, Living with the Risk of Backfire: A Response to the Feminist Critiques of Privacy and Equality, 77 Minn. L. Rev. 1153, 1162 (1993) ("Perversely, after relegating women to a subordinate status in a lower status sphere, the separate spheres ideology causes society to ignore even gross instances of oppression of women within the private sphere.")

(182.) Gavison, supra note 178, at 22. (183.) Id.

(184.) Id at 20; see also Stein, supra note 181, at 1162-63 (stating that at same time privacy doctrine creates sphere free from government interference, it perpetuates male-dominated power structure within that sphere and legitimizes private oppression of women).

(185.) Feminists have debated extensively as to whether equality or privacy should be used to secure women's rights. Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the Constitution, 18 Harv. J.L. & Pub Pol'y 419 (1995) (arguing that both privacy and equal protection support woman's right to choose abortion); Stein, supra note 181, at 1153. The National Abortion Rights Action League (NARAL) attacked Ruth Bader Ginsburg's nomination to the Supreme Court. Naral's President mistakenly thought that Ginsburg was advocating overruling Roe v.Wade. Justice Ginsburg in fact supports the right to choose abortion but thinks that the equality theory provides stronger foundation for it than does the privacy theory. Linda Greenhouse, On Privacy and Equality: Judge Ginsburg Still Voices Strong Doubts on Rationale Behind Roe v. Wade Ruling, N.Y. Times, June 16, 1993, at A1. (186.) See Martha L.A. Fineman, Feminist Theory and Law, 18 Harv. J.L. & Pub. Pol'y 349, 351 (1995) (discussing early women reformers' position that achievement of equality required accommodation of differences); Susan P. Sturm, Sameness and Subordination: The Dangers of a Universal Solution, 143 U. PA. L. Rev. 201, 219 (1994) (commenting on Robert A. Burt, Judges, Behavioral Scientists, and the Demands of Humanity. 143 U. PA. L. Rev. 179 (1994), and concluding that universal solution framed in terms of sameness or differences does not exist, therefore society must find new paradigm). (187.) See Lucinda M. Finley, Transcending Equality Theory: A Way Out of Maternity and Workplace Debate, 86 Colum. L. Rev. 1118, 1166 (1986) (arguing against stereotyping since individuals of both sexes can be dedicated to family and career); see generally Ellen S. Podgor & Leonard D. Pertnoy, Bias v. Difference: An Analysis for Those Who Just Don't Get It, 54 ALB. L. REV. 413 (1990). (188.) Finley, supra note 187, at 1171. (189.) Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1,3 (1988). See generally Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 Nw. U. L. Rev. 858, 862 (1993) (arguing that relational feminism reflects needs embedded in roles that men have given women, not women's actual needs).

(190.) See Karlan & Ortiz, supra note 189, at 894 (criticizing strict adherence to one theory of feminism and advocating destruction of artificial barriers between relationism and autonomy). (191.) William Burdick, The Principles of Roman Law and Their Relation to Modern Law 214 (1989); 4 Edward Gibbon, The Decline and Fall of the Roman Empire 473 (J.B. Bury ea., 1909); Alan Watson, Roman Law & Comparative Law 33 (1991). (192.) See Nan Oppenlander, The Evolution of Law and Wife Abuse, 3 Law & Pol'y Q. 382, 386 (1981) (discussing Roman Empire's legal system, which gave absolute authority to husband over his wife); see also Watson, supra note 191, at 33 (stating that father had complete power of life and death over children, including selling them into slavery, consenting to marriage, and ordering divorce).

(193.) Gibbon, supra note 191, at 477.

(194.) For the legal position of a wife in Roman law during different eras, see generally Susan Treggiari, Roman Marriage (1991). Under Roman law, women were forbidden to engage in extramarital intercourse. Id. at 199. The wife was subordinate to the husband, id. at 202-03, as evidenced by laws allowing the husband and kinsmen to kill the wife for adultery, id. at 264-65, or the husband alone could kill his wife for adultery, id. at 268-69. Under Augustan law, the husband who killed his wife for adultery could expect to be acquitted of murder. Id at 274. (195.) See Richard H. Chused, Married Women's Property Law: 1800-1850, 71 GEO. L.J. 1359, 1388 (1983) (citing Blackstone's CommentarisS (S.G. Tucker ea., 1803) as version most widely used in early nineteenth century America). (196.) 4 William Balckstone, Commentaries *75-*76.

(197.) 4 William Blackstone, Commentaries *203-*204.

(198.) Genesis 2:12-19.

(199.) See Jenni Parrish, A Guide to American Legal History Methodology with an Example of Research in Progress, 86 Law Lib. J. 105, 105 & n.2 (1994) ("[T]he wife [was] ... a mere appendage of her husband...." (quoting Professor Loring of Harvard Law School)); Judith T. Younger, Community Property, Women and the Law School Curriculum, 48 N.Y.U. L REV. 211, 212 n.6 (1973) (citing A. Casner and W. Leach, CAses and Text on Property 261 (2d ed. 1969)). (200.) I William Blackstone, Commentaries *444.

(201.) Antonia Fraser, The Wives of Henry VIII, 243-57, 351-54 (1992) (discussing executions of Anne Boleyn and Catherine Howard for treason by reason of adultery). (202.) 84 Eng. Rep. 1107 (1707).

(203.) Id at 1115.

(204.) I William Blackstone, Commentaries *444.

(205.) See generally Oppenlander, supra note 192, at 387 (discussing rule of thumb and subsequent rulings by American courts which allowed husbands to beat wives without fear of prosecution); Beirne Stedman, Right of Husband to Chastise Wife, 3 VA. L. REG. 241, 243-46 (1917) (discussing early American courts' recognition of husband's right to beat wife but concluding that as of 1917 rule was disapproved); cf. The Right to Beat One's Wife, 59 ALBANY L. J. 388, 388-89 (1899). Contra Henry A. Kelly, Rule of Thumb and the Folklaw of the Husband's Stick, 44 J. LEGAL EDUC. 341,364 (1994) (concluding that rule of thumb was no longer law in England by Blackstone's time and that early American cases miscited him).

For early American cases citing "the rule of thumb," see Bradley v. State, 1 Miss. 156, 157-58 (I Walker) (1824) (mentioning rule of thumb and stating husband should confine himself within reasonable bounds when beating wife); State v. Rhodes, 61 N.C. (Phil. Law) 453, 459 (1868) (repudiating rule of thumb on size of the instrument of punishment, but refusing to interfere in cases of "trifling violence").

The Supreme Court of Alabama in Fulgham v. State, 46 Ala. 143 (1871), disavowed the rule of thumb for all the people of Alabama, including George Fulgham and his wife who "[b]oth were high tempered, and were emancipated slaves. " Id at 144 (stating how case arose.) As an example of the high level of civilization reached in America, the court cited James Kent on the husband's right of " `gentle restraint.'" Id at 147-48. The original text is not benign:

But as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given

him a reasonable superiority and control over her person, and he may even put gentle restraints upon her

liberty, if her conduct be such as to require it ....

2 James Kent, Commentaries on American Law 181 (5th ed. 1827). Blackstone inspired Kent's Commentaries. See John H. Langbein, Chancellor Kent and the History of Legal Literature, 93 Colum. L. Rev. 547, 591 (1993). Kent held the first professorship at Columbia College. l was a Kent Scholar at Columbia Law School. Now I know what it means.

(206.) I William Blackstone, Commentaries *444-*445, n.102.

(207.) Browne, supra note 139, at 555 (citing Sir Thomas Seymor's Case, 78 Eng. Rep. 131, 966 (1653)). Lest anyone think the English have become civilized over the last three centuries, during their engagement Prince Andrew gave Sarah Ferguson a "playful SLAP" and she pretended to fall backward from a parapet overlooking the English Channel. Royal Pair Frolic on Vow's Eve--Hundreds Camp Out for Prince's Wedding, Ariz. Republic, July 23, 1986, at C1. (208.) Mary Becker et al., Cases and Materials on Feminist Jurisprudence: Taking Women Seriously I (1994).

(209.) Oppenlander, supra note 192, at 382.

(210.) Becker, supra note 208, at 10-11; Oppenlander, supra note 192, at 390-91.

(211.) For more information on the connection between the Temperance Movement and the early women's movement, see generally Ruth Bordin, Frances Willard: A Biography (1986) (discussing life of Francis Willard, President of Woman's Christian Temperance Movement); Linda Gordon, Heroes of Their Own Lives: The The Politics and History of Family Violence 254 (1988) ("The image of the beaten wife, the indirect victim of drink, was prominent in temperance rhetoric. . . ."). Recent work has connected alcohol and wife abuse. Deborah C. Richardson & Jennifer L. Campbell, Alcohol and Wife Abuse: The Effect of Alcohol on Attributions of Blame for Wife Abuse, 6 Personality & Soc. Psychol. Bull. 51 (1980). (212.) "After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited." U.S. Const. amend. XVIII, [section] 1, repealed by U.S. Const. amend. XXI.

(213.) See Becker, supra note 208, at 14-16; see generally Virginia G. Drachman, The New Woman Lawyer and the Challenge of Sexual Equality in Early Twentieth-Century America, 28 Ind. L. Rev. 227, 229 (1995) (analyzing 1920s questionnaires collected by women's organization from women lawyers showing disillusionment by late 1920s with belief in equality in the legal profession).

(214.) Oppenlander, supra note 192, at 394-400.

(215.) See generally Chused, supra note 195, at 1359 (discussing history of Married Women's Property Acts). (216.) Oppenlander, supra note 192, at 393.

(217.) Id. at 393-94 ("In the nineteenth century women far outnumbered men as plaintiffs in divorce actions, and the divorce rate climbed steadily . . . .").

(218.) Id.; see also Pleck, supra note 129, at 97 (discussing how women were forced to defend themselves from accusations that they were breaking up families). (219.) See, e.g., Harris v. State, 14 So. 266, 269 (Miss. 1894) (overruling Bradley v. State, 1 Miss. 156 (I Walker) (1824) (justifying use of moderate chastisement)); see also Oppenlander, supra note 192, at 393-94 (discussing gradual shift away from common law doctrine permitting marital assault); Stedman, supra note 205, at 246 n.24 (listing cases where husband was accountable under criminal law for beating wife). (220.) 1 Miss. 156 (1 Walker) (1824). (221.) Id. at 158.

(222.) Id. at 157.

(223.) Id. at 158; accord State v. Rhodes, 61 N.C. 453, 454 (1868); see also Kent, supra note 205, at 181 (analogizing husband/wife relationship to teacher/pupil and categorizing complaints arising from both as trivial).

(224.) 61 N.C. 453 (1868). (225.) Id at 454.

(226.) Id The North Carolina Supreme Court in Rhodes found that "personal conflicts inflicting only temporary pain [were] not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber." Id at 457.

Associate Justice Clarence Thomas used similar reasoning to cut off questioning regarding pornographic movies and sexual discussions. See Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States, Hearing Before The Senate Committee on the Judiciary, 102d Cong., 1st Sess. (1991). At the hearing, he stated, "I will not get into any discussions that I might have about my personal life or my sex life with any person outside the workplace," id at 195; and, "I didn't want my personal life or allegations about my sexual habits or anything else broadcast in every living room in the United States." Id at 256. (227.) Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). (228.) Rhodes, 61 N.C. at 459.

(229.) 14 So. 462 (Miss. 1894).

(230.) Id

(231.) Epaphroditus Peck, Women's Rights in a Male-Suffrage State, 25 Yale L.J. 459, 462 (1915). (232.) Pleck, supra note 129, at 88-89.

(233.) Id. at 95.

(234.) Id. at 96. "In these respects, [the agency] resembled the Society for the Protection of Women and Children from Aggravated Assaults founded in England some thirty years earlier." Id (235.) Id.

(236.) Id. at 101-02.

(237.) Id at 102.

(238.) Id at 103. Aware of developments in Great Britain, Lucy Stone noted that wife beating "occurred in every country and was increasing in the United States. Boston police statistics indicated that there were five hundred arrests for wife beating every year." Id at 104. Stone and Blackwell believed that giving women the vote could reduce wife beating. Id at 106.

(239.) Oppenlander, supra note 192, at 395. For a review of early torts doctrine, see William E. McCurdy, Torts Between Persons in Domestic Relation, 43 Harv. L. Rev. 1030 (1930). For recent feminist reviews of tort doctrine, see generally Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. Legal ed. 3 (1988); Leslie Bender, An Overview of Feminist Torts Scholarship, 78 Cornell L. Rev. 575 (1993); and Martha Chamallas &Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88 Mich. L. Rev. 814 (1990). (240.) Oppenlander, supra note 192, at 395.

(241.) Id at 395-96.

(242.) "The image of the beaten wife, the indirect victim of drink, was prominent in temperance rhetoric from the 1830's." Gordon, supra note 211, at 254. See also Pleck, supra note 129, at 98 (noting belief that combination of alcohol and lust transformed kind men into violent brutes), Oppenlander, supra note 192, at 391 (discussing concept that drunkenness was a male habit that directly threatened women's safety). (243.) Gordon, supra note 211, at 264.

(244.) Id.

(245.) U.S. Const. amend. XV.

(246.) U.S. Const. amend. XIX.

(247.) Becker' supra note 208, at 1-2.

(248.) Id. at 2.

(249.) Nina Morais, Note, Sex Discrimination and the Fourteenth Amendment: Lost History, 97 YALE L.J. 1153, 1172 (1988) (quoting The Concise History of Wowen's Suffrage 6 (Mari Jo & Paul Buhle eds., 1978)). John Stuart Mill in The Subjection of Women went even further when condemning marital rape, stating,'" [A] female slave has (in Christian Countries) an admitted right . . . to refuse her master the last familiarity. Not so the wife . . . .'" Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 Yale J. L. & Feminism 207, 207 n.4 (1992) (quoting John Stuart Mill, The Subjection of Wowen 32 (1869)).

(250.) The Declaration of Sentiments pares. 4-5 (1848), reprinted in Becker, supra note 208, at 3. Approximately 300 women and men attended the Seneca Falls convention. No African American women attended. Madelyn C. Squire, Discovering Our Connections: Reflections on Race, Gender and the Other Tales of Difference, 23 Golden Gate U. L. Rev. 795, 802 (1993). The first national convention on women's rights was held in 1850. Sojourner Truth was the only African American woman present. At the 1851 Convention she gave her famous "Ain't I a Woman?" speech Id. at 802-03. (251.) The Declaration of Sentiments pare. 10 (1848), reprinted in Becker, supra note 208, at 4. (252.) Oppenlander, supra note 192, at 393. (253.) "They organized the American Equal Rights Association (ERA) in 1866 . . . . The ERA officers were Elizabeth Cady Stanton, African American feminist activist Frances Ellen Watkins, Susan B. Anthony, and Frederick Douglas (who had been a significant presence at Seneca Falls and other women's conventions)." Squire, supra note 250, at 804. (254.) Id.

(255.) Becker, supra note 208, at 10.

(256.) Id.; see U.S. Const. amend. XIV, [section] 2 ("[W]hen the right to vote at any election . . . is denied to any of the male inhabitants of such State, . . . the basis of representation [in Congress] shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens . . . in such State. " ). (257). McConnell, supra note 249, at 207. (258.) Id at 216; see also id at 207 ("A husband has a right of property in the service of his wife; he has the right to the management of his household affairs. . . . All these rights rest upon the same basis as a man's right of property in the service of slaves. " ) (quoting Representative White, addressing House of Representatives). (259.) See Christine Stansell, White Feminists and Black Realities: The Justice, Politics of Authenticity, in Race-ing Justice, En-Gender-ing Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality 251, 253 (Toni Morrison ed., 1992) [hereinafter Race-ing Justice]. (260.) Within the women's movement, the American Equal Rights Association became the National Women's Suffrage Association, an organization for white women, lead by Elizabeth Cady Stanton and Susan B. Anthony, which focused on a federal constitutional amendment. Becker, supra note 208, at 10. Other leaders of the women's movement, including Lucy Stone and her husband, Henry Blackwell, adopted the Republican position that women's rights could wait until African American male rights were achieved. Stansell, supra note 259, at 251-52. These leaders split off and founded the more cautious American Woman Suffrage Association which mounted state by state campaigns for women's suffrage. Becker, supra note 208, at 10. The mainstream suffrage movement "became increasingly and overtly racist [and] emphasized the value of granting the vote to women in order to counterbalance the votes of Black men and immigrants" Id at 11. " [T]he suffrage movement, reunited in 1890 into the National American Woman Suffrage Association (NAWSA), refused membership to the Black women's clubs, refused to support Black women's demands, and in fact segregated public functions of their own. . . ." Id. at 12. (261.) Stansell, supra note 259, at 253. Justice Ruth Bader Ginsburg referred to this unfortunate history during her nomination proceedings. See Excerpts From Senate Hearings on the Ginsburg Nomination, N.Y. Times, July 22, 1993, at A20 (noting how white feminists lobbied against ratification of Fourteenth Amendment because it did not improve status of women). (262.) Articles discussing woman abuse from various perspectives are reprinted in Law and Violence Against Women--Cases and Materials on Systems of Oppression (Beverly Balos & Mary L. Fellows eds., 1994) [hereinafter Law and Violence Against Women]. See Jo-Ellen Asbury, African-American Women in Violent Relationships: An Exploration of Cultural Differences, in Law and Violence Against Women 207, 207-08 (discussing how role of extended family and history of oppression of African Americans affects how African American women respond to abuse); Andrea Dworkin, Living in Terror; Pain: Being a Battered Wife, in Law and Violence Against Women 216, 216-18 (describing violence against women end how calls for help go unheeded); Angela Ginorio & Jane Reno, Violence in the Lives of Latina Women, in Law and Violence Against Women 211, 211 (noting how statistics about violence against Latinas are hard to find and how Catholic Latino culture makes violence against Latinas unique); Nancy Hammond, Lesbian Victims and the Reluctance to Identify Abuse, in Law and Violence Against Women 205, 205-06 (discussing unique problems associated with abuse in lesbian relationship); Nilda Rimonte, Domestic Violence Among Pacific-Asians, in Law and Violence Against Women 208, 209-10 (focusing on how immigrant experience and traditional sex roles affect abused Asian women).

Such perspectives are also reflected in law journals. See Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1241 -65 (1991) (identifying racism and sexism as sources of abuse); Don J. DeBenedictis, Development, Judges Debate Cultural Defense, A.B.A. J., Dec. 1992, at 28, 28-29 (summarizing debates at women judges' conference on cultural defense, which can allow male abusers to go unpunished because such behavior is accepted in their former countries); Maxine Yi Hwa Lee, A Life Preserver for Battered Immigrant Women: The 1990 Amendments to the Immigration Marriage Fraud Amendments, 41 Bupp. L. Rev. 779, 779-86 (1993) (discussing how amendments enable abused women to leave violent relationship without fear of losing immigration status); Sandra E. Lundy, Abuse That Dare Not Speak Its Name: Assisting Victims of Lesbian and Gay Domestic Violence in Massachusetts, 28 New Eng. L. Rev. 273, 281-92 (1993) (noting similar dynamics of homosexual and heterosexual abuse except for added isolation due to homophobia); Nilda Rimonte, Women of Color at the Center: Selections From the Third National Conference on Women of Color and the Law: A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 Stan. L. Rev. 1311, 1312 (1991) (documenting cultural approval of woman abuse in Pacific-Asian communities and need to introduce change into culture); Beth Ritchie, Battered Black Women a Challenge for the Black Community, BLACK SCHOLAR, Mar.-Apr. 1985, at 40, 40 (noting particular obstacles for abused African American women).

The mass media have published articles on woman abuse within groups. See Rita Beamish, Picture Is Bleak for Women, Phila. Inquirer, Mar. 8, 1994, at B7 (noting that rights reports show abuse across globe); For Muslim Women, Lives in Limbo, N.Y. Times, Nov. 8, 1993, at B9 (mentioning how mobilization of Muslim women has led to creation of shelters for abused women in Muslim communities); Edward A. Gargan, For Many Brides in India, a Dowry Buys Death, N.Y. Times, Dec. 30, 1993, at A5 (reporting how some Indian men burn their wives to death if they are dissatisfied with dowries); Ellen Goodman, Women Are Breaking the Silence on the Violence Done to Them, Phila. Inquirer, June 22, 1993, at A13 (emphasizing how women across globe are speaking out about violence against women and for its recognition as violation of human rights); Steven Greenhouse, State Dept. Finds Widespread Abuse of World's Women, N.Y. Times, Feb. 3, 1994, at A1 (reporting State Department documentation of abuse of women in 193 countries); Constance L. Hays, Enduring Violence In a New Home--Spouse Abuse and Ethnic Concerns, N.Y. Times, Dec. 6, 1993, at B3 (describing battle of different ethnic groups against domestic violence); Kimberly J. McLarin, Latinos Confront Abuse: A Social Service Agency Takes A Stand Against Domestic Violence, Phila. Inquirer, Nov. 22, 1992, at B1 (reporting challenges of Latina women against domestic violence due to lack of resources); Kimberly J. McLarin, Agencies to Tackle Latino Violence, Phila. Inquirer, Nov. 6, 1992, at B14 (describing two social service agencies joining to combat domestic violence in Latino communities); Molly O'Neill, Secrets Revealed, N.Y. Times, July 25, 1993, at 5, at 8 (reviewing author Deborah Laake's controversial book, Secret Ceremonies, which challenges patriarchy of Mormon Church and abuse of Mormon women).

(263.) Margaret A. Burnham, The Supreme Court Appointment Process and the Politics of Race and Sex, in Race-ing Justice, supra note 259, at 319.

(264.) Becker, supra note 208, at 10.

(265.) Id. at 11.

(266.) The Concise History of Woman Suffrage 297-300 (Mari Jo & Paul Buhle eds., 1978). (267.) Id at 301 (quoting Declaration of Rights for Women).

(268.) 3 William Blackstone, Commentaries *352.

(269.) 3 William Blackstone, Commentaries *362.

(270.) 1 William Blackstone, Commentaries *456.

(271.) 4 William Blackstone, Commentaries *394-95.

(272.) 4 William Blackstone, Commentaries *395.

(273.) Carol Weisbrod, Images of the Woman Juror, 9 Harv. Women's L.J. 59, 60 n.3 (1986). For descriptions of how witchcraft charges operated primarily against women, see Carol F. Karlsen, The Devil in the Shape of a Woman: Witchcraft in Colonial New England 47, 102-03 (1987); Laura Shapiro, The Lessons of Salem, Newsweek, Aug. 31, 1992, at 64.

(274.) James C. Molt, Magna Carta 75-77 (2d ed. 1992) (discussing history of jury system and Magna Carta S focus on jury of one's peers).

(275.) "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ...." U.S. Const. amend. V. (276.) "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the Crime shall have been committed, ...." U.S. Const. amend. VI (277.) "In suits at common law, where the value in Controversy shall exceed twenty dollars, the right of trial by jury shall he preserved, ...." U.S. Const. amend. VII; see Akhil R Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1183 (1991) (emphasizing how framers of Bill of Rights Saw jury as key safeguard to protect ordinary individuals against government). (278.) See Richard Lacayo, Whose Peers.?, Time, Fall 1993, at 60 (discussing how multi-ethnicity of society affects choosing a jury); see also Mark Hansen, Different Jury, Different Verdict?, A.B.A. J., Aug. 1992, at 54,56 (asking whether verdicts in Rodney King case would have been different with different jury). (279.) Amar, supra note 277, at 1185 (quoting Alexis DeTocqueville, Democracy in America 293-94 (J.R. Mayer ed. & George Lawrence trans., 1969) [hereinafter DeTocqueville]). (280.) Amar, supra note 277, at 1189 (quoting DeTocqueville, supra note 279, at 293). This was the case for African American men after the passage of the Fifteenth Amendment. Neal v. Delaware, 103 U.S. 370, 389-90 (1880); see also infra notes 315-20 and accompanying text (discussing case). This was not true for women, however, after the passage of the Nineteenth Amendment. Commonwealth v. Welosky, 177 N.E. 656, 661 (Mass. 1931); see also infra notes 385-411 and accompanying text (discussing case). (281.) See Batson v. Kentucky, 476 U.S. 79, 87 (1986) ("The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposely exclude black persons from juries undermine public confidence in the fairness of our system of justice."); see also Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 Colum. L. Rev. 725, 774 (1992) (comparing jury rights to voting rights and noting that exclusion of groups can damage judicial system); Note, Beyond Batson: Eliminating Gender-Based Peremptory Challenges, 105 Harv. L. Rev. 1920, 1930-31 (1992) (discussing how wide variety of perspectives leads to fair decisions). (282.) See Wayne R. LaFave & Austin W. Scorr, Criminal Law 19-20 (2d ed. 1986) (noting that juries use wide discretion and inject their subjective views when deciding whether to convict). (283.) See Amar, supra note 277, at 1191-95 (noting how juries sometimes act inconsistently to law and/or facts); Maria Marcus, Conjugal Violence: The Law of Force and the Force of Law, 69 Cal. L. Rev. 1657, 1658 (1981) (discussing jury nullification in cases of abused women who kill their abusers). (284.) Amar, supra note 277, at 1191-95.

(285.) Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139 (1872); see also In re Goodell 39 Wis. 232, 235 (1875) (interpreting Wisconsin statute on admission to practice law to apply to males only). For a discussion of women's struggle to be admitted to the Illinois bar, see Jane M. Friedman, Myra Bradwell: On Defying the Creator and Becoming a Lawyer, 28 Val. U. L. Rev. I 287 (1994), reprinted from Jane M. Fredman, America's First Woman Lawyer: The Biography of Myra Bradwell 17-33 (1993).

(286.) Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171 (1875).

(287.) Thompson v. Thompson, 218 U.S. 611, 619 (1910).

(288.) 83 U.S. (16 Wall.) 130 (1872).

(289.) Id at 134.

(290.) Id at 137. Robin West has similarly argued that "[w]omen are in fact the same as--and therefore equal to--men, in the only sense that should matter to liberal legal theory. Women, like men, are autonomous individuals who, if free to do so, will choose among proffered alternatives so as to fashion their own 'good life' and thereby create social value." WEST, supra note 11, at 181. (291.) Bradwell, 83 U.S. (16 Wall.) at 137.

(292.) Id. at 139 (citing Slaughter-House Cases, 83 U.S. (16 Wall.) 36,72-74 (1873)). (293.) Id.

(294.) Id. at 141.

(295.) Id.

(296.) Id.

(297.) 88 U.S. (21 Wall.) 162 (1874).

(298.) Id. at 163 (emphasis added).

(299.) Id at 172.

(300.) Id at 174-75.

(301.) Id at 176-77.

(302.) DeTocqueville, writing in the early years of our republic, noted the tie between the jury system and universal suffrage.

The jury system as it is understood in America appears to me to be as direct and as extreme a

consequence of the sovereignty of the people as universal suffrage. They are two instruments of equal

power, which contribute to the supremacy of the majority. Amar, supra note 277, at 1185 (quoting DeTocqueville, supra note 279, at 294).

(303.) Jennifer K. Brown, The Nineteenth Amendment and Women's Equality, 102 Yale L.J. 2175,2179 (1993). (304.) 100 U.S. 303 (1880).

(305.) 103 U.S. 370 (1881).

(306.) 100 U.S. at 305.

(307.) Id.

(308.) Id. at 306

(309.) Id. at 308.

(310.) Id.

(311.) Id.

(312.) Id. at 309.

(313.) Id. at 310 (emphasis added).

(314.) Id at 308. Civil rights laws are applied to any class identifiable by ancestry or ethnic characteristic. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (holding that man of Middle Eastern ancestry had cause of action under Civil Right amendments).

(315.) 103 U.S. at 371.

(316.) Id. at 387.

(317.) Id. at 387-88.

(318.) Id. at 389. The Court stated:

Beyond question, the adoption of the Fifteenth Amendment had the effect, in law, to remove from the State Constitution, or render inoperative, that provision which restricts the right of suffrage to the white race. Thenceforward, the statute which prescribed the qualifications of jurors was, itself, enlarged in its operation, so as to embrace all who by the State Constitution, as modified by the supreme law of the land, were qualified to vote at a general election.


(319.) Id. at 393-94.

(320.) Id. at 397. Justice Field, in dissent, accepted the argument, which the majority clearly rejected, that white men were capable of representing Black men.

There is no suggestion that the grand jurors by whom the indictment was found, or the petit jurors summoned for the trial, had not the prescribed qualifications, and were not 'sober and judicious' men. It would seem, when the law has been obeyed, as in this case, that something more than the mere absence of colored persons from the panels should be shown before they can be set aside. And the fact that colored persons had never, since the act of Congress of May 1, 1875, been selected as jurors may be attributed to other causes than those of race and color.

Id. at 401.

(321.) 218 U.S. 611 (1910).

(322.) Id. at 615-16 (quoting District of Columbia Married Women's Property Act, D.C CODE [Section] 1155 (1901)). (323.) Id. at 614-15.

(324.) Id. at 619.

(325.) Id. at 617-18.

(326.) Id. at 618.

(327.) Id.

(328.) See Lucinda M. Finley, A Break in the Silence: Including Women's Issues in a Torts Course, 41 YALE J. L. & FEMINISM 41, 45-48 (1989) (discussing notion that wife merged with husband into one legal entity upon marriage); Carl Tobias, Interspousal Tort Immunity in America, 23 GA. L. REV. 359, 361-441 (1989) (reviewing development of interspousal tort immunity); see also W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS [Section] 122, 901- 11 (5th ed. 1984) (noting that causes of action founded on tortuous conduct may be affected when family members are involved).

(329.) Thompson, 218 U.S. at 621.

(330.) Id. at 619-20. Pregnant women seem to be a particularly high-risk group for abuse. See infra notes 463 571 -75 and accompanying text (discussing abuse of pregnant women). (331.) See Oppenlander, supra note 192, at 398-99. (332.) See Finley, supra note 328, at 46 ( "Such notions about proper familial relationships not only affected tort law, but contributed to the law's persistent tendency not to consider as an injury the abuse suffered within the supposed haven of a home--a tendency that still shapes the law and law enforcement today. " ). (333.) See Tobias, supra note 328, at 359 (noting that from 1920 to 1970, interspousal tort immunity became minority rule in United States). (334.) Finley, supra note 328, at 45.

(335.) Tobias, supra note 328, at 359 n.2 (noting that Delaware and Hawaii retained complete interspousal immunity and Arizona, Florida, Georgia, Louisiana, Nevada, and Vermont retained partial immunity). (336.) 88 U.S. (21 Wall.) 162 (1874). (337.) See Note, Constitutionality Under the Fourteenth Amendment and the Proposed Nineteenth Amendment of State Laws Limiting Jury Service to Male Citizens, 6 VA. L. REV. 589 (1920), reprinted in 6 VA. L. REG. 635 (1921) [hereinafter Constitutionality Under the Fourteenth Amendment] (noting that "majority of the supporters of the equal suffrage movement desire and expect by the [Nineteenth A]mendment to vest women with all the rights, privileges and duties that men now enjoy and perform").

(338.) Crystal Eastman Benedict, Political Recognition of Women the Next Step in the Development of Democracy, 19 CASE & COM. 327, 327-31 (1912-13).

(339.) Id. at 328.

(340.) Id. at 329.

(341.) Brown, supra note 303, at 2176; Akhil Reed Amar, Women and the Constitution, 18 HARV. J.L. & PUB. POL'Y 465, 471-72 (1995).

(342.) 103 U.S. 370 (1880).

(343.) Id. at 389-90.

(344.) Constitutionality Under the Fourteenth Amendment, supra note 337, at 589.

(345.) Id.

(346.) Id.

(347.) Id. at 590.

(348.) Id. at 590-91.

(349.) Women were first admitted to the University of Virginia Law School at the start of the 1920- 1921 session. Letter from Marsha Trimble, Archivist, to Marina Angel, Professor of Law (Apr. 18, 1995) (on file with author) (citing VII THE UNIVERSITY OF VIRGINIA RECORD, DEP'T OF LAW 6 (1921)).

(350.) Constitutionality Under the Fourteenth Amendment, supra note 337, at 591.

(351.) Id. at 592. Two volumes later, however, another Virginia Law Review article concluded, "In keeping with the spirit of the times, however, as manifested by the amendment which gives women the ballot, statutes granting them the right to serve as jurors will likely be enacted in many of the States. " Recent Decision, Right of Women to Serve as Jurors-Effect of Nineteenth Amendment Upon, 8 VA. L. REV. 139, 140 (1922).

(352.) Emmet O'Neal, The Susan B. Anthony Amendment: Effect of Its Ratification on the Rights of the States to Regulate and Control Suffrage and Elections, 6 VA. L. REV. 338, 343-45 (1920). (353.) Id. at 357. This seems to be a reference to the Jim Crow segregation statutes passed in the early twentieth century. For a discussion of Jim Crow segregation statutes, see CHARLES A. LOFGREN, THE PLESSY CASE: A LEGAL-HISTORICAL INTERPRETATION 7-27 (1987); C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 33-34 (2d ed. 1966). (354.) O'Neal, supra note 352, at 357.

(355.) Id. at 344.

(356.) Id. at 346-48.

(357.) Letter from Lance Liebman, Dean of Columbia University School of Law, to Marina Angel, Professor of Law (May 3,1995) (on file with author).

(358.) Current Legislation, Equalizing the Legal Status of the Sexes, 21 COLUM. L. REV. 712 (1921) [hereinafter Equalizing the Legal Status of the Sexes]. (359.) Id. at 713. The argument that a woman's primary occupation was to tend to the home and children was widely accepted as the basis for excluding women from jury duty. See Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring). In 1922, the American Bar Association Journal noted that having young children would be a "serious difficulty" which would necessitate the exemption of women from jury service. Current Legislation, Statutory Changes in the Legal Status of Women, 8 A.B.A. J. 105, 106 (1922). A 1923 article in Law Notes dealt with the "serious question of whether all married women having sole charge [of] their households should not be exempt." The article concluded, "Man has few enough rights left without impairing his age old right to a warm dinner, subject only to the equally ancient qualification of the willingness of his spouse to prepare it." Women Jurors, 26 LAW NOTES 224 (1923). (360.) Equalizing the Legal Status of the Sexes, supra note 358, at 714. (361.) Id.

(362.) Women Jurors, 27 Case & Com. 136, 138 (1921).

(363.) R. Justin Miller, The Woman Juror, Address Before the State District Attorney's Association (Dec. 15, 1922) reprinted in 20OR L. Rev. 30, 42 (1922).

(364.) Id.

(365.) Id at 48.

(366.) Id at 43 (citing statistics that showed that 77.7% of women claimed exemption in 35 of 36 counties in Oregon). (367.) Id at 45.

(368.) See id at 48. ("We hesitate to think of what would happen to the institution of trial by jury, if men should demand equality with women on this point.") Miller's concerns have proven valid. The states are currently faced with a juror crisis because of excessive automatic exemptions. See infra note 795 (discussing New York State's rescission of all automatic exemptions).

Miller also faced the somewhat petty but practical question raised by the problem of " 'keeping the jurors together' " during deliberations. He suggested placing a female bailiff in charge of the women and a male bailiff in charge of the men with partitions between the two during the night if a jury was sequestered. Miller, supra note 363, at 42. (369.) Id at 45.

(370.) Id at 63.

(371.) 8 Mass. L.Q. (1923).

(372.) B. Loring Young, The Legal Position of Women in Massachusetts, 8 Mass. L.Q. 27 (1923).

The Massachusetts Legislature established the right of women to hold office in 1920 as to municipal offices and as to all state and county offices in 1921. Id. The Legislature passed this statute after the State Attorney General issued an opinion stating that women could not be made eligible by statute for such state and county offices unless the state constitution was amended. Id "Many members of the Legislature differed with the Attorney General and expressed in debate the opinion that the 'suffrage' amendment had by necessary implication abrogated state constitutional provisions barring women from the right to hold public office." Id at 27-28. In an advisory opinion, the Supreme Judicial Court of Massachusetts agreed. In re Opinion of the Justices, 135 N.E. 173 (Mass. 1922). It is inconsistent to find that the Nineteenth Amendment invalidated the state constitution on women holding public office but not state statutes interpreted to prohibit women from serving on juries but this is what the Supreme Judicial Court decided in another advisory opinion. In re Opinion of the Justices, 130 N.E. 685 (Mass. 1921). Young noted that two bills which would have provided for equal jury service failed to pass. Young, supra, at 28. (373.) Young, supra note 372, at 28. (374.) Id at 30-31. Included in the same issue of Massachusetts Law Quarterly was a leaflet reprinted from the Legislative Council, a women's organization, with arguments in favor of and against equal jury service. Legislative Council, Leaflet, Bill Making Women Liable for Jury Service, 8 Mass. L.Q. 39 (1923). (375.) The Referendum of the Boston Bar Association, 8 Mass. L.Q. 38, 38 (1923). (376.) See Jennie Loitman Baron, Arguments in Favor of Bill Making Women Liable for Jury Service, 8 Mass. L.Q. 39, 39 (1923).

(377.) Id ("To say that a woman before the bar is entitled to judgment by her peers, and then to exclude women from juries, is to misinterpret the spirit underlying our institutions. " ). (378.) Id

(379.) Id. at 40.

(380.) Id. at 41; see generally Taunya Lovell Banks, Toilets as a Feminist Issue, 6 Berkeley Women's L.J. 263, 263 (1990-91) (advancing theory that degree of sexual equality in America can be measured by its public toilets). See also Barbara Ehremeich, What Do Women Have to Celebrate?, Time, Nov. 16, 1992, at 61 (noting that in 1992 United States Senate chamber still had no women's bathroom).

(381.) Some Arguments in Opposition to the Bill to Make Women Liable for Jury Service, 8 Mass. L.Q. 39 (1923). (382.) Id

(383.) Id. at 40.

(384.) Id The Massachusetts Law Quarterly ends with a humorous account of the way a mixed jury operated. The Story of a "Mixed Jury" in Pennsylvania, 8 Mass. L.Q. 48 (1923) (excerpted from The Story of How a "Mixed Jury" Passed an All-Night Session, Literary Dig., Mar. 17, 1923, at 50). "There were seven good men and true on that jury; and there were five women, equally good and true and also, it appeared, quite as active and determined." Id There were "four married women and a girl about 21 years old." Id at 49. The men included "a negro [and] one Jew and one Irishman, . . . of tireless energy, and in the vernacular of the day, 'good scouts.'" Id The twelve of them went through an all-night session, locked up together in a little jury room, since they could not agree on their verdict. The time was passed with songs, stories, and a lively "crap game," played with cubes of sugar marked with a pencil in imitation of dice." Id at 49-50.

This issue of the Massachusetts Law Quarterly also included excerpts from Miller's address in favor of jury service by women reprinted in the Oregon Law Review article, supra note 363, and a short excerpt from an English article against jury service by women. Women Jurors in Unpleasant Cases, 8 Mass. L.Q. 48 (1923). The thrust of the English article was that peremptory challenges could be used to eliminate women. Id Under English law, the right to challenge was very limited "and practically the only way to get rid of the feminine members of the jury is for both counsel and the judge to combine in requesting them not to sit." Id. This seems to be the first reference in an American law journal to using peremptory challenges to eliminate women from juries. The article advocated limiting participation by women to those cases "where a woman's honor and virtue are in question." Id In all other cases, their presence was totally unnecessary. Id

(385.) 177 N.E. 656 (Mass. 1931). The faculty members teaching Legal Decisionmaking to the first-year class at Temple Law School agreed in 1985 to use a casebook whose statutory interpretation section included Welosky. Paul J. Mishkin & Clarence Morris, On Law in Courts: An Introduction to Judicial Development of Case and Statute Law 352 (1965). The casebook introduced me to Welosky and allowed me to use A Jury of Her Peers when teaching it.

(386.) Welosky, 177 N.E. at 661.

(387.) Id at 665.

(388.) Mass. Const. art II (West 1964) ("Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions."). See generally William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 Cal. L. Rev. 263, 268 (1990) (asserting that state court issuing advisory opinion acts as constitutional adviser without judicial capacity or authority); Reuben Goodman, Advisory Opinions, in 1964 Annual Survey of Massachusetts Law 95, 95-96 (Richard G. Huber ea., 1964) (providing history and background of advisory opinions in Massachusetts); Note, Extra-Judicial Opinions, 10 Harv. L. Rev. 50, 50-51 (1896) (outlining state's constitutional provisions requiring judicial opinions on important questions). (389.) In re Opinion of the Justices, 130 N.E. 685 (Mass. 1921); see supra note 372 (discussing case). (390.) Welosky, 177 N.E. at 658 (quoting Mass. Gen. L. ch. 234, [Sections] 1 (1784)). Compare the statute at issue in Welosky, Mass. Gen. L. ch. 234, [Sections] 1 (1784) (stating "[a] person qualified to vote for representatives to the general court shall be liable to serve as a juror"), with the statute at issue in Neal, Del. Rev. Stat. ch. 109, [Sections] 1 (1853) (stating "[a]ll persons qualified to vote at the general election shall be liable to serve as jurors"). (391.) Id at 659.

(392.) Id

(393.) Id at 661.

(394.) Id

(395.) 103 U.S. at 397-98.

(396.) 2A Sutherland Statutory Construction [Sections] 45.11 (5th ed. 1992).

(397.) Welosky, 177 N.E. at 661.

(398.) Id The court found the statute constitutional under both the Equal Protection Clause of the Fourteenth Amendment and the Nineteenth Amendment. Id at 663. (399.) Id at 663. The court, in its attempt to distinguish Neal, a constitutional decision, rationalized that the Supreme Court merely upheld the Delaware state court's interpretation of its statute to include African American men. Id (400.) Id

(401.) Id at 662. The court stated: It is most unlikely that the Legislature should, for the first time, require women to serve as jurors without making provision respecting the exemption of considerable numbers of women who ought not to be required to serve as jurors and without directing that changes for the convenience of women be made in courthouses, some of which are notoriously overcrowded and unfit for their accommodations as jurors. Id.

(402.) Id at 663.

(403.) Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 STAN. L. REV. 1547, 1547 (1993).

(404.) Welosky, 177 N.E. at 664.

(405.) In 1939, Grace Harte, a member of the Illinois Bar, noted: What, in reality has the Nineteenth Amendment done for the women of this nation as a whole besides abolishing discrimination against them in the matter of the right to vote? 'Nothing at all,' say the highest courts in some states. 'It gave women complete political equality with men, and the right to perform all the functions of electors, including that of participation in jury duty' according to the Supreme Courts of other States.

Grace H. Harte, Women Jurors and the American Scene, 25 Women Lawyer's J. 9, 9 (1939). According to Grace Harte, "[Susan B. Anthony] believed such an amendment would, in raising women to the status of legal voters . . . put the two sexes on a parity so far as their political and civil rights, privileges, duties and responsibilities are concerned." Id

(406.) See Nev. Const. [Sections] 27, art. 4 (excluding "from serving on juries, all persons not qualified electors of this State"); see also Nev. Rev. Stat. [Sections] 4929 (1873), which states "Every qualified elector of the state . . . is a qualified juror of the county in which he resides."

(407.) 174 P. 706 (Nev. 1918).

(408.) Id. at 708.

(409.) Id.. at 709.

(410.) Id.

(411.) Id. at 710 ("It is not a certain class of qualified electors who are eligible to jury duty, but all qualified electors.") The Supreme Court of North Dakota used similar expansive reasoning in 1934 in state v. Norton, 255 N.W. 787 (N.D. 1934), three years after Welosky. A defendant challenged his criminal conviction on the ground that the jury included women. Id. at 793. The constitution of North Dakota guaranteed a right to trial by jury of "twelve men." Id. at 788. In 1921, a North Dakota statute stating that all ``male citizens,, qualified as electors were competent to serve on juries was amended to eliminate the word "male." Act of 1921, ch. 81,1921 N.D. Laws 814. The North Dakota Supreme Court stated "[t]he history of jury service in this country is the history of service by the electors, and with us the `electors' are `peers.'" Norton, 255 N.W. at 791. Tracing the origin of a right to trial by one's peers from Magna Carta through Strauder, the Court concluded:

Legislation which makes women eligible for jury duty is a mere recognition Of the equality of the sexes in all matters affecting the state. It maintains the principle that the selection of the jury is confined to peers and in no way affects the number, impartiality, or unanimity.


(412.) A Jury of Her Peers, supra note 4, at 303.

(413.) C. Henry Kempe et al., The Battered-ChiW Syndrome, 181 JAMA 17, 17-24 (1962). (414.) See Gordon, supra note 211, at 264 (discussing creation of battered women's shelters for wives of alcoholics). (415.) See Deli Martin, Battered Wives 6 (1976) (discussing Erin Pizzey, Scream Quietly or the Neighbors Will Hear (1974)). (416.) Id.. at 7.

(417.) See generally U.S. Dep't of Health & Human Services, U.S. Dep't of Justice, Surgeon General's Workshop on Violence and Public Health Report [hereinafter Surgeon General's Workshop on Violence and Public Health] (Health Resources & Servs. Admin. 1986) (discussing prevalence of violence against women); see also Senate Judiciary Comm., Violence Against Womwn: A Week in the Life of America, S. Rep. No. 118, 102d Cong., 2d Sess. 26 (1992) (documenting tremendous risk of violence against women in America).

(418.) See R. Emerson Dobash & Russel P.Dobash, Wives: The `Appropriate' Victims of Marital Violence, 2 Victimology 426, 426 (1977-78). Dobash and Dobash write, "Early research on homicide in several countries revealed that men were much more likely to commit murder than women and when women were killed they were predominately the victims of attacks by [their husbands or male] intimates." Id. at 432 (citation omitted). Of the 487 women killed by males in England and Wales between 1885 and 1905, 127 were wives and 115 were female intimates. Id. (citing Arthur MacDonald, Death Penalty and Homicide, 16 AM. J. Soc. 96 ( I 911)). Similarly, of all women killed by intimates in Germany during 1931, 61.5% were killed by their husbands. Id. (citing Hans Von Heutig, The Criminal and His Victim 392 (1948)).

In the late nineteenth century, Prime Minister Benjamin Disraeli established a Parliamentary Committee to study crime in fifty-two counties of England and Wales. Id. at 431. The study found hundreds of reported cases between 1870 and 1875 of brutal assaults against wives. "The comments of . . . constables revealed a high level of intolerance of brutal assaults against wives but a high level of acceptance of what they called ordinary assaults against them." Id.. The rule of thumb was, in fact, alive and well. See Dorie Klein, The Dark Side of Marriage-Battered Wives and the Domination of Women, in Judge, Lawyer, Victim, Thief: Women, Gender Roles, and Criminal Justice 86-87 (Nicole H. Rafter & Elizabeth A. Stanko eds., 1982) (examining shift away from rule of thumb by courts in nineteenth century).

Professor Victor Streib has researched the death penalty for female offenders. See Victor L. Streib, Death Penalty for Battered Women, 20 FLA. ST. U. L. Rev. 163 (1992) [hereinafter Streib, Death Penalty for Battered Women]; Victor L. Streib, Death Penalty for Female Offenders, 58 U. Cin. L. Rev. 845 (1990) [hereinafter Streib, Death Penalty for Female Offenders]; Victor L. Streib, Capital Punishment of Female Offenders: Present Female Death Row Inmates and Death Sentences and Executions of Female Offenders, January 1, 1973 to March 31, 1996 (22nd ed. Apr. 12, 1996) (unpublished reports on file with author). After reviewing all female executions in the history of the United States, Streib found the largest number were executed for homicide; the second highest number were executed for the almost uniquely female crime of witchcraft. Streib, Death Penalty for Female Offenders, supra, at 851-52. Seventy-two percent of the executed African American women whose crimes are known were slaves who committed homicide. Id. at 853. Most often, they killed either their owner or some member of the owner's family. Id. at 854. Women slaves account for 90% of those women executed for attempted homicide. Id. at 853.

Women constitute less than 3% of the total executions occurring in the United States. Streib, Death Penalty for Battered Women, supra, at 165. Executions of African American women are vastly disproportionate to their homicide convictions, constituting 60% of all women executed and 39% of those executed in this century. Streib, Death Penalty for Female Offenders, supra, at 879.

Streib reviewed leniency factors and found that women have less significant prior criminal records than male defendants; that their crimes tend to be less violent; and that few of their homicides are premeditated. Id. at 874-76. Women arrested for homicide are more likely to be first offenders than women arrested for other crimes. Id. at 875. Homicides by women tend to involve sudden, unplanned acts within the family. Id. at 876. Myrna Raeder's findings on women offenders were similar and led her to conclude that there was disproportionately harsh sentencing of women offenders. See Myrna S. Raeder, Gender and Sentencing: Single Moms, Battered Women, and Other Sex-Rased Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 PEPP. L. Rev. 905, 908 (1993); Myrna S. Raeder, "Gender Neutral" Sentencing Wreaks Havoc in the Lives of Women Offenders and Their Children, 8 A.B.A. CRIM. JUST. 21, 23 (1993).

Streib's statistics consistently show that approximately one-third of the women on death row were convicted of killing either their husbands or male intimates, Streib, Death Penalty for Battered Women, supra, at 186, and that convictions for capital murders are rare if evidence of battered woman syndrome is admitted. Id. He concluded, "If not an acceptable form of self-defense justifying the homicide altogether, [battered woman syndrome] it is an incomplete defense . . . reducing . . . the crime to manslaughter." Id.

(419.) See Patsy A. KLAUS Michael R. RAND, Bureau of Justice Statistics, U.S. Dep't of Justice, SPECIAL REPORT: FAMILY VIOLENCE 4 (1984) (stating that 1978-1982 National Crime Survey revealed that 13% of women did not report crime for fear of reprisal); PATRICK A. LANGAN & CHRISTOPHER A. INNES, BUREAU OF JUSTICE STATISTICS, U.S. Dep't OF JUSTICE, SPECIAL REPORT: PRevENTING DOMESTIC VIOLENCE AGAINST WOMEN I (1986) (noting that, according to 1978-1982 National Crime Survey, 48% of all domestic violence against women was not reported to police). (420.) 478 A.2d 364 (N.J. 1984).

(421.) Id. at 370. For a discussion on the myth of safety in the home, see Isabel Marcus, Reframing "Domestic Violence: Terrorism in the Home, in Public Nature of Private Violence, supra note 179, at 349. (422.) Violence Against Women: A Week in The Life of America, supra note 417, at 2. (423.) Id. In January 1994, the Department of Justice supported these findings when it reported that of known violent offenders against women, "approximately 28% were intimates such as husbands or boyfriends.... In contrast, victimizations by intimates and other relatives accounted for only 5% of all violent victimizations against men. RONET Bachman, Bureau of Justice Statistics, U.S. Dep't of Justice, Violence Against Women: A National Crime Victimization Survey Report 1 (1994). "Three out of four offenders committing domestic violence against women were spouses (9%), ex-spouses (35%) and boyfriends or ex-boyfriends (32%). When only spousal abuse is considered, divorced or separated men committed 79% of such violence, and husbands, 24%. Caroline Wolf Harlow, U.S. Dep't of Justice, Female Victims of Violent Crime 2 (1991).

(424.) Violence Against Women: A Week in The Life of America, supra note 417 at 6. (425.) John M. Dawson & Patrick A. Langan, U.S. Dep't of Justice, Special Report: Murder in Families 1 (1994). (426.) Id. at 3 & tbl. 2. White husbands killed in 62% of the cases and white wives in 38%. Black husbands killed in 53% of the cases and Black wives in 47%. Id..; see also Margo I. Wilson & Martin Daly, Who Rills Whom in Spouse Killings? On the Exceptional Sex Ratio of Spousal Homicides in the United States, 30 Criminology 189 (1992) (reporting that from 1976 to 1985 for every 100 men who killed their wives, about 75 wives killed their husbands); Franklin E. Zimring et al., Intimate Violence: A Study of Intersexual Homicide in Chicago, 50 U. Chi. L. Rev. 910, 914 (1983) (reporting that "the war between the sexes takes its casualties in equal number [in Chicago in 1981], 81 were female; the remaining 70 were male"). (427.) In 1986 I delivered a presentation at the Association of American Law Schools (AALS) Annual Meeting on Battered Women. l contrasted male and female rates of violent crimes, where the female rate was substantially lower, with the rate for homicides involving spouses or male intimates, where the female rate (3.9%), although lower than the male rate (5.5%), approximated it. Marina Angel, Address at the Association of American Law Schools Annual Meeting (Jan. 5, 1986). (428.) See Phyllis L. Crocker, The Meaning of Equality for Battered Women Who Kill in Self-Defense, 8 Harv. WOMEN'S L.J. 121, 121-22 (1985) (finding that homicide rate for women is substantially higher than their rate of violent crime, indicating these homicides are not all violent killings initiated by women). As Richard J. Gelles and Murray A. Straus have noted, "Every one of the women we have met who has slain her husband did so after years of cruel physical and mental punishment. Richard J. Gelles & Murray A. Straws, Intimate Violence 19 (1988); see also Angela Browne & Kirk R. Williams, Exploring the Effect of Resource Availability and the Likelihood of Female-Perpetrated Homicides, 23 LAW & Soc'Y Rev. 75, 76 (1989) (finding that homicides committed by women are more likely to be in response to male violence than male perpetrated homicides are in response to female violence). (429.) Linda L. Ammons, Discretionary Justice: A Legal and Policy Analysis of a Governor's Use of the Clemency Power in the Cases of Incarcerated Battered Women, 3 J. L. & POL'Y 1, 53-61 (1994); Comment,, Developments in the Law-Legal Responses to Domestic Violence, 106 Harv. L. Rev. 1498,1589-91 (1993).

In 1990, the Supreme Court of Canada recognized self-defense based on battered woman syndrome by allowing testimony of context and expert testimony regarding an abused Woman's reasonable belief in the need for self-defense. Lavallee v. The Queen, 55 C.C.C. 3d 97 (Can. 1990). The Canadian government is studying the impact of the decision on earlier convictions of abused women who killed their abusers. These women may be retried, released, or receive reduced sentences. Stephen Bindman, Women Who Killed Abusive Mates Reviewed, Vancouver Sun, July 14, 1995, at A4. (430.) See Bachman, supra note 423, at 8; see also Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 5 (1991) [hereinafter Mahoney, Separation Attack] (explaining that many women do not leave abusive situations because abuser is most acutely violent and potentially lethal at moment of separation). (431.) See Bachman, supra note 423, at 8, 10, tbl. 17, tbl. 18 (1994) (reporting that of all police responses to assaults on women within first ten minutes of notification, 43% were assaults by intimates compared to 64% which were assaults by strangers). (432.) Id. at 10, tbl. 19 (reporting that of all attackers against whom women physically fight back, 20% were strangers compared to 40% who were intimates of assaulted victims).

(433.) Id. at 7 (reporting that 59% of women attacked by intimates were likely to be injured compared to 27% of women attacked by strangers).

(434.) Id. (reporting that 27% of women attacked by intimates were likely to require medical care compared to 14% of women attacked by strangers).

(435.) Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, l, 2 Rev. L. & WOMEN'S STUD. 71, 89 (1992). "About I in 5 women victimized by their spouse or ex-spouse reported that they had been the victim of a series of similar crimes ...." Harlow, supra note 423, at 2-3.

(436.) Coker, supra note 435, at 89.

(437.) Lenore E. Walker is probably known best for her work, Lenore E. Walker, The Battered Woman Syndrome (1984). (438.) See id (defining "learned helplessness"). But see Karla Fischer et al., Procedural Justice Implications of ADR in Specialized Contexts: The Culture of Battering and the Role of Mediation in Domestic Violence Cases, 46 S.M.U. L. Rev. 2117, 2136 (1993) (documenting extensive help-seeking by battered women); Robert E Schopp et al., Battered Woman Syndrome, Expert Testimony, and the Distinction Between Justification and Excuse, 1994 U. Ill. L. Rev. 45, 50-64 (criticizing Dr. Lenore Walker's theory of learned helplessness because studies of 400 women were drawn from selected sample, no control group was used, method of data collecting was vulnerable to distortion, and conclusion was not supported by data). (439.) See Fischer et al., supra note 438, at 2136-37 (citing Karla Fischer, The Psychological Impact and Meaming of Court Orders of Protection for Battered Women 65-66 (1992) (unpublished Ph.D. dissertation on file with the author)). (440.) See Mahoney, Separation Attack, supra note 430, at 83 (naming separation attack); see also Martha R. Mahoney, Victimization or Oppression: Women's Lives, Violence and Agency, in Public Nature of Private Violence, supra note 179, at 59, 79 [hereinafter Mahoney, Women's Lives] (elaborating further on separation attack); Fischer et. al., supra note 438, at 2138-39 (discussing how "the most dangerous time for a battered woman is when she separates from her partner"). (441.) See HARLOW, supra note 423, at 5 ("Separated or divorced women were 14 times more likely than married women to report having been a victim of violence by a spouse or es-spouse. Although separated or divorced women comprised 10% of all women, they reported 75% of the spousal violence."). Homicide statistics provide further support for separation attack. "In 1981 [in Chicago] over half of all intersexual killings involved prior intimate or familial relationships ...." Zimring, supra note 426, at 916. (442.) See Evan Stark & Anne Flitcraft, Killing the Beast Within: Woman Beating and Female Suicidality, 25 Int'l J. Health SERVS.43, 43-44 (1995) (positing that battering may be most important cause of female suicide); see also Jean Abbott et. al., Domestic Violence Against Women: Incidence and Prevalence in an Emergency Department Population, 273 JAMA 1763, 1765 (1995) ("Eighty-one percent of women with a history of suicide attempts had experienced [domestic violence] at some time in their lives, compared with 19% of those with no history of suicide attempts ....").

(443.) Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 83 (1991). "The facts behind many, perhaps most, self-defense cases . . . reveal that the woman . . . ha[d] been repeatedly, and successfully attacked before she finally kill[ed] her abuser." Id. (444.) Kimberlie Williams Crenshaw, Mapping the Margins: Intersectionality, Id.entity Politics, and Violence Against Women of Color, in Public Nature of Private Violence, supra note 179, at 93 (noting that domestic violence was not major concern of politicians when it was viewed as minority problem). (445.) See Langan & Innes, supra note 419, at 1 ("White and black women experienced equivalent rates of violence committed by intimates and other relatives.") Professor Martha Mahoney wrote, "The fiction that violence is exceptional is fundamental to stereotypes that portray battered women as helpless, dependent, and pathological. If it were understood that violence is really everywhere, then it would not be difficult to accept that violence happens to ordinary women." Mahoney, Women's Lives, supra note 440, at 63; see also Hillary Johnson, The Truth About White-Collar Domestic Violence, Working Woman, Mar. 1995, at 54. (446.) Bachman, supra note 423, at 7. (447.) Murray A. Straus & Richard J. Gelles, Societal Change and Change in Family Violence from 1975 to 1985 As Revealed by Two National Surveys, 48 J. Marriage & Fam. 465, 473 (1986) [hereinafter Straus & Gelles, Change in Family Violence]. Empirical studies have refined our understanding of patterns of woman abuse. Straus and Gelles, early researchers who completed national studies in 1975 and 1985, found a 16% assault rate for all couples in any single year and that "over half of American couples experience[d] one or more incidents of assault . . . during the course of a marriage." Id. at 465.; see also Scott L. Feld & Murray A. Straus, Escalation and Desistance of Wife Assault in Marriage, 27 Criminology 141, 142 (1989) (noting that family violence was recurrent, under-reported, and generational).

Straus & Gelles noted that "physical force [was] the ultimate recourse to keep subordinate groups in their place," and that women were such a group. Straus & Gelles, Change in Family Violence, at 465. They concluded that people hit family members because they could get away with it since the cost of being violent was less than the rewards. Gelles & Straus, Intimate Violence, supra note 428, at 21; see also Mahoney, Women ' Lives, supra note 440, at 83 (discussing cycle of violence).

Gelles and Straus, however, have been criticized for this perspective. See Fischer et al., supra note 438, at 2125, 2137 (criticizing Straus and Gelles' focus on family violence and spouse abuse rather than woman abuse, and their assessment tool-the conflict tactic scale-which abstracts violence from its context in family relationships); see also Demie Kurz, Social Science Perspectives of Wife Abuse: Current Debates and Future Directions, 3 Gender & Soc. 489, 492-93 (1989) (finding that violence is used most often by powerful family member in order to legitimize dominant role).

According to Fischer, the conflict tactic scale only identifies violence that occurs in a context of conflict and not violence that occurs "out of the blue" as a result of a husband's or male intimate's control tactics. Fischer et al., supra note 438, at 2135-36. Moreover, as Kurz notes, the conflict tactic scale fails to measure how much of women's violence is in self-defense or who was injured and to what degree. Kurz, supra, at 494. (448.) Bachman, supra note 423, at 7. (449.) Violence Against Women: A Week in the Life of America, supra note 417, at 26. (450.) Coker, supra note 435, at 71-72.

(451.) Id at 85.

(452.) Victoria M. Mather, The Skeleton in the Closet: The Battered Woman Syndrome, Self-Defense and Expert Testimony, 39 Mercer L. Rev. 545, 555 (1988).

(453.) See Fischer et al., supra note 438, at 2123 (stating that 33% to 60% of abused women have been sexually assaulted); Developments in the Law-Legal Responses to Domestic Violence, supra note 429, at 1533 (reporting that 59% of abused women have been sexually assaulted). (454.) Mather, supra note 452, at 556. Social isolation can include locking a woman up in her home, making sure she never goes out alone, and selecting her friends.

(455.) See Martin, supra note 415, at 83 (noting that "a battered wife's sense of futility is related to the [empty] state of her pocketbook); see also Fischer et al., supra note 438, at 2121-22 & n.17 (stating that financial and property abuse are forms of emotional abuse inflicted on women); Mather, supra note 452, at 555-556 (declaring that economic deprivation in battering relationships is form of abuse). (456.) Coker, supra note 435, at 87. (457.) See Browne & Williams, supra note 428, at 85-90 (discussing decline in rate of female, but not male, perpetrated homicides from 1980-84 as compared with 1976-79). (458.) Id at 91.

(459.) See James A. Fox, Domestic Homicide in America: Trends and Patterns for 1976-1992, 1 (College of Criminal Justice, Northeastern University, 1994).

(460.) Id at 2.

(461.) Id at 3. This study also attributed the drop in the rate of domestic homicides of Black women to alternatives provided by shelters, increases in the number of special prosecutors, protective orders, and counseling programs for abusers. Id.

(462.) According to Dawson and Langan, African American wives killed their husbands in 47% of the cases and were killed by their husbands in 53% of such situations. For white Americans, the husband killed the wife in 62% of the cases, and the wife killed the husband in 38% of the cases. Dawson & Langan, supra note 425, at 1. (463.) Stark & Flitcraft, supra note 442, at 51.

(464.) 218 U.S. 611 (1910).

(465.) Id. at 621.

(466.) Alan J. Tompkins et al., Children Who Witness Woman Battering, 14 Law & Pol'y 169, 170 (1992) [hereinafter Tompkins et al., Children Who Witness Woman Battering]; see generally Alan J. Tompkins et al., The Plight of Children Who Witness Woman Battering: Psychological Knowledge and Policy Implications, 18 Law & Psychol. Rev. 137 (1994) [hereinafter Tompkins et al., Plight of Children] (addressing psychological consequences for children who witness battering and providing policy suggestions for legal professionals and social service providers). (467.) Tompkins et al., Children Who Witness Woman Battering, supra note 466, at 170. (468.) Id at 171-73; Tompkins et al., Plight of Children, supra note 466, at 143-52. (469.) Nancy S. Erickson, Battered Mothers of Battered Children: Using Our Knowledge of Battered Women to Defend Them Against Charges of Failure to Act, 1A Current Persp. Psychol., Legal & Ethical Issues 197 (1991); Mark Hansen, Liability for Spouse's Abuse, A.B.A. J., Feb. 1993, at 16; Kristian Miccio, In the Name of Mothers and Children: Deconstructing the Myth of the Passive Battered Mother and the "Protected Child " in Child Neglect Proceedings, 58 Alb. L. Rev. 1087 (1995); Jill A. Phillips, Comment, Re-Victimized Battered Women: Termination of Parental Rights for Failure to Protect Children From Child Abuse, 38 Wayne L. Rev. 1549 (1992); cf. Marjory D. Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and Visitation Decisions in New York State, 3 Cornell J.L. & Pub. Pol'y 221, 243-52 (1994). (470.) Phillips, supra note 469, at 1552. (471.) Id at 1555-56.

(472.) See Joyce Oates, The Woman Before Hillary, N.Y. Times, May 8, 1994, [Section] 7, at 1, 15 (book review) (reviewing VIRGINIA Kelley, Leading with my Heart (1994)); Todd S. Purdum, At Home With Virginia Kelley, N.Y. Times, Aug. 13, 1992, at C1 (reporting Kelley's recollection of being shot at by husband). (473.) Gail Shister, Miss America Plays Herself in a Movie About Abuse She Suffered, Phila. Inquirer, July 13, 1992, at D3. (474.) Alessandra Stanley, Ballet Master Held in Assault on His Wife, N.Y. Times, July 22, 1992, at B3 (475.) Id.

(476.) Id.

(477.) Trip Gabriel, The Trials of Bob Packwood, N.Y. Times, Aug. 29, 1993, [Section] 6, (Magazine) at 30. (478.) Marina Angel, Letter to the Editor, N.Y. Times, Sept. 19, 1993, [Section] 6, (Magazine), at 16. (479.) Constance L. Hays, Enduring Violence In a New Home-Spouse Abuse and Ethnic Concerns, N.Y. Times, Dec. 6, 1993, at B3. (480.) Id.

(481.) Id. See Abby Goodnough, Battered Immigrants Find a Haven, N.Y. Times, Jan. 30, 1995, at B3 (describing support group for Russian immigrant victims of woman abuse); see also, For Muslim Women, Lives in Limbo, N.Y. Times, Nov. 8, 1993, at B9 (mentioning formation of shelters for abused Muslim women).

(482.) Eric Schmitt, Family Violence: Protection Improves But Not Prevention, N.Y. Times, Jan. 17, 1989, at B1. (483.) Larry Olmstead, Anatomy of Couple's Fatal Domestic Dispute, N.Y. Times, May 18, 1993, at A I.

(484.) Seth Mydans, 8 of 9 Teen-Agers Freed in Sex Case, N.Y. Times, Mar. 24, 1993, at A14; see also, Jane Gross, Where 'Boys Will Be Boys,' And Adults Are Befuddled, N.Y. Times, Mar. 29, 1993, at A1 (describing activities of "Spur Posse"). (485.) Michael Marriott, A Menacing Ritual Is Called Common in New York Pools, N.Y. Times, July 7, 1993, at A1; Robert D. McFadden, Three Youths Are Arrested in Assault at Public Pool, N.Y. Times, July 30, 1993, at B3; Meeting to Examine Sex Attacks in Pools, N.Y. Times, July 15, 1993, at B3. These attacks continued into the summer of 1994. Michael Marriott, In Wake of Attacks, Swimmers Profess Pool Loyalty, N.Y. Times, July 10, 1994, at A25; Douglas Martin, After Attacks, Segregating of Pools is Weighed, N.Y. Times, July 7, 1994, at B1; Craig Wolff, Girl is Sexually Assaulted in Public Pool in Bronx, N.Y. Times, July 6, 1994, at B3. (486.) Fern Shen, Welts Betray Dark Side of Teenage Dating, Wash. Post, July 18, 1993, at A1; see also Claude Lewis, Dating Violence is a Dark Secret Emerging From the Closet, Phila. Inquirer, July 21, 1993, at A13 (discussing court-ordered treatment program for teenage males who beat their intimates). The increase in teenage violence has been noted recently in the legal literature. See Stacy L. Brustin, Legal Responses to Teen Dating Violence, 28 Fam. L.Q. 331 (1995); Kathyrn E. Suarez, Comment, Teenage Dating Violence: The Need for Expanded Awareness and Legislation, 28 Cal. L. Rev. 423, 449-71 (1994) (proposing that state legislatures address intimate violence by including minors in group protected by civil and penal domestic violence statutes). (487.) In First, Michigan State Opens Women's Shelter, N.Y. Times, Aug. 24, 1994, at B8.

(488.) Eric Schmitt, Military Struggling to Stem an Increase in Family Violence, N.Y. Times, May 23, 1994, at A1. On March 9, 1994, women representing the four branches of the U.S. Military testified before the House Armed Services Committee that they suffered unwanted sexual advances and were "disdained, ostracized and, in some cases, transferred to dead end jobs," when they turned to military authorities for relief. Eric Schmitt, Military Women Say Complaints of Sex Harassment Go Unheeded, N.Y. Times, Mar. 10, 1994, at A 1.

(489.) Eric Schmitt, Judge Dismisses Tailhook Cases, Saying Admiral Tainted Inquiry, N.Y. Times, FEB. 9, 1994, at A I [hereinafter Schmitt, Judge Dismisses Tailhook Cases]; see generally, Michael R. Gordon, Pentagon Report Tells of Aviator's 'Debauchery,' N.Y. Times, Apr. 24, 1993, at A1 (focusing on Pentagon Tailhook report which concluded that convention was not isolated incident and that misconduct was more widespread than previously indicated); Anne Lo Lordo, Studies: Sexual Abuse Widespread in Military, Phila. Inquirer, Mar. 29, 1993, at B7 (stating that in 1989, 11 go of Army personnel had been assaulted by their fellow service members and two-thirds of women in study of 20,000 claimed they had been sexually harassed). (490.) Schmitt, Judge Dismisses Tailhook Cases, supra note 489, at A1; see also, No Penalty Is Imposed in Last Tailhook Case, Phila. Inquirer, Feb. 10, 1994, at A3 (editorial) (reporting that Navy did not court-marhal any men involved in Tailhook); Eric Talmadge, Newsletter Shows Tailhook Case Didn't End the Parties, Phila. Inquirer, Apr. 14,1994, at A3 (reporting on Air Force newsletter which described post-Tailhook parties).

(491.) Eric Schmitt, Senate Panel Says Admiral in Scandal Merits Full Pension, N.Y. Times, Apr. 15, 1994 at A1; see Maureen Dowd, Senate Approves a 4-Star Rank For Admiral in Tailhook Affair, N.Y. Times, Apr. 20, 1994, at A I (discussing heated Senate debate and 54-43 vote in favor of granting Kelso four-star retirement); Eric Schmitt, Senate Women Want Admiral to Lose 4-Star Rank, N.Y. Times, Apr. 19, 1994, at A1 (noting that six female Senators stated opposition to allowing Kelso to retire with four stars); 'So Little Leadership,' N.Y. Times, Apr. 21, 1994, at A18 (editorial) (concluding that Admiral Kelso failed his command by refusing to fully investigate Tailhook and that his supporters failed to recognize idea of responsibility); Two Stars Are Plenty, N.Y. Times, Apr. 14, 1994, at A20 (editorial).

(492.) $5 Million Punitive Award For Sex Assault by Aviators, N.Y. Times, Nov. 1, 1994, at A24 (editorial). Some women collected against the Tailhook Association. Tailhook Group Settles Lawsuit by 6 Who Charged Sex Assault, N.Y. Times, June 23,1995, at A18. (493.) David Margolick, Lisa's Bright Shining Future Is Laid to Rest at Arlington, N.Y. Times, July 17, 1994, at A1; cf. Eric Schmitt,Military Struggling to Stem an Increase in Family Violence, N.Y. Times, May 23,1994, at A1 (describing increase in domestic violence in military families). (494.) David Margolick, supra note 493, at A1. Sgt. Ervin M. Graves was later convicted of murder and attempted rape by a court martial. Michael Janofsky, Army Sergeant Convicted in Slaying of a Female Lieutenant, N.Y. Times, July 22, 1994, at A18. (495.) Lawrence K. Altman, Artful Surgery: Reattaching a Penis, N.Y. TIMES, July 13,1993, at C3.

(496.) David Margolick, Psychiatrist Says Years of Abuse Led Woman to Cut Husband, N.Y. TIMES, Jan. 19, 1994, at B7 [hereinafter Margolick, Years of Abuse]. (497.) Rattle of the Sexes Joined or Case of a Mutilation, N.Y. TIMES, Nov. 8, 1993, at A16. (498.) Altman, supra note 495, at C3.

(499.) See Evans-Smith v. Commonwealth, 361 S.E.2d 436, 442-43 (Va. App. 1987) (holding inadmissible evidence as to man's verbal attacks on wife during his trial for her murder); Williams v. Commonwealth, 127 S.E.2d 423, 426 (Va. 1962) (excluding evidence of prior spousal abuse in a homicide prosecution). (500.) Stephen Labaton, Husband is acquitted of Rape in Mutilation Case, N.Y. TIMES, Nov. 11, 1993, at A18; Jan Hoffman, Jury's Acquittal in Sex Mutilation Case Alarms Women's Advocates, N.Y. TIMES, Nov. 12, 1993, at A16. (501.) David Margolick, Wife Tells Jury of Love Story, Then 'Torture', N.Y. TIMES, Jan. 13, 1994, A12. (502.) Anne Gearan, Bobbitt Says He Didn't Hit His Wife, Denies Making Earlier Guilty Plea, PHILA. INQUIRER Jan. 12, 1994,atA16. (503.) Id.

(504.) David Margolick, Lorena Bobbitt Acquitted in Mutilation of Husband, N.Y. TIMES, Jan. 22, 1994, at 1, 7; Margolick, Years of Abuse, supra note 496 at B7. (505.) Robert Nigro, Kemler Says Hype Overshadowed Real Issues in Lorena Bobbitt Trial, PHILA. B. REP., Feb. 28, 1994, at 1. (506.) Id.

(507.) Bobbitt Jurors Recount Case, N.Y. TIMES, Jan. 24, 1994, at A12.

(508.) Patricia Davis & Jane Seaberry, Bobbin Jurors Did A Re-enactment to Reach Verdict, PHILA. INQUIRER, Jan. 23, 1994, at A3.

(509.) Bobbitt Arrested on Fiancee's Complaint, N.Y. TIMES, May 7, 1994, at All. Recently, John Bobbitt has pursued a career as a pornographic film star. John Wayne Bobbitt, PHILA. INQUIRER, Aug. 21, 1994, at A3. (510.) Seth Mydans, Simpson is Charged, Chased, Arrested, N.Y. TIMES, June 18, 1994, at A 1. (511.) Id. (512.) Id. at A20.

(513.) Tamar Lewin, Case Might Fit Pattern of Abuse, Experts Say, N.Y. TIMES, June 19, 1994, A20; see also Jane Gross, Simpson Case Galvanizes U.S. About Domestic Violence, N.Y. TIMES, July 4, 1994, at 6 (reporting that abuse hotline calls made by battered women rose significantly after Simpson murder charges). (514.) Id.

(515.) Sara Prosecution in '89 on Domestic Violence Charges is Called a 'a Terrible Joke, ' N.Y. TIMES, June 18, 1994, at A10. (516.) Id.

(517.) Id.

(518.) Id.

(519.) Id.

(520.) Id.

(521.) Sara Rimer, Nicole Simpson: Private Pain Amid Life in the Public Eye, N.Y. TIMES, June 23, 1994, at A1, A20. (522.) Id. at Al.

(523.) Andrea Dworkin, Nicole Was Alone Against Simpson, PHILA. INQUIRER, Oct. 14, 1995, at A9; David Margolick, Prosecutors Win Key Simpson Fight, N.Y. TIMES. Jan. 19, 1995, at A1. (524.) Margolick, supra note 523.

(525.) Text of the Letter From O.J. Simpson, N.Y. TIMES, June 18,1994, at 10, see Coker, supra note 435, at 106 (examining emotional self-defense claims by abusers after killing their spouses). (526.) Timothy Egan, Not Guilty: The Jury; One Juror Smiled; Then They Knew, N.Y. TIMES Oct. 4, 1995, at All; David Margolick, Not Guilty: The Overview, N.Y. TIMES, Oct. 4, 1995, at A1.

(527.) Bill Hutchinson, Jurors Say Holes in Evidence, Not Race, Were Deciding Factors to Acquit Simpson, BOSTON HERALD, Oct. 5, 1995, at 1; Debbie Howlett & Mark Potok, "We went by the evidence," Juror Asserts/Panel Members Say They Weren't Convinced, USA TODAY, Oct. 5, 1995, at 5A; Isabel Wilderson, Whose Side to Take: Women, Outrage and the Verdict on O.J. Simpson, N.Y. TIMES, Oct. 8, 1995, [Sections] 4, at 1; Jim Herron Zamora, Prime Murder Suspect: The Spouse or Ex; When a Woman is Killed, Domestic Violence History Can Lead to Culprit, Cops and Researchers Say, S.E EXAMINER, Oct. 10, 1995, at A1.

(528.) Hutchinson, supra note 527. (529.) Gross, supra note 513, at A6. " 'The Simpson case is the equivalent of Anita Hill's sexual harassment charges,' says Temple University School of Law Professor Marina Angel. 'Because of this case, people will become more aware of what abused women go through.'" Erica Goode et al., Till Death Do Them Part?, U.S. NEWS & WORLD REP., July 4, 1994, at 24; see also Charisse Jones, Nicole Simpson, in Death, Lifting Domestic Violence to the Forefront as National Issue, N.Y. TIMES, Oct. 13, 1995, at A28. (530.) See generally MALVINA HALBERSTAM & ELIZABETH E DEFEIS, WOMEN'S LEGAL RIGHTS: INTERNATIONAL COVENANTS AN ALTERNATIVE TO ERA?

(1987); Michele E. Beasley & Dorothy Q. Thomas, Domestic Violence as a Human Rights Issue, in PUBLIC NATURE OF PRIVATE VIOLENCE, supra note 179, at 323; Elizabeth E Defeis, Equity and Equality for Women-Ratification of International Covenants as a First Step, 3 SETON HALL CONST. L.J. 363 (1993); Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Isabel Marcus, Reframing "Domestic Violence ": Terrorism in the Home, in PUBLIC NATURE OF PRIVATE VIOLENCE, supra note 179, at 11, 25-34; Dorothy Q. Thomas & Michele E. Beasley, Domestic Violence as a Human Rights Issue, 58 ALB. L. REV. 1119 (1995). (531.) Celina Romany, Women as Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, 6 HARV. HUM. RTS. J. 87 (1993).

(532.) See generally Diana C. Chiu, The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism, 82 CAL. L. REV. 1053 (1994) (discussing use of cultural norms as defense to abuse of Asian American women); Anna Funder, De Minimis Non Curat Lex: The Clitoris, Culture and the Law, 3 TRANSNAT'L L. & CONTEMP. PROBS.417, 438-46 (1993) (arguing cultural relativism has been misused in international human rights law); Leti Volpp, (Mis) Identifying Culture: Asian Women and the "Cultural Defense, " 17 HARV. WOMEN'S L.J. 57, 57-58 (1994) (claiming chat culture may be consideration, but not formal defense); Alice J. Gallin, Note, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 741-45 (1994) (remarking on ways cultural defense by immigrants is affecting American legal system); see supra note 176 (noting dispute on allowance of cultural defense in American criminal cases). (533.) Kay Boulware-Miller, Female Circumcision: Challenges to the Practice as a Human Rights Violation, 8 HARV. WOMEN'S L.J. I 55, 163-64 ( 1985) (citing FEMALE CIRCUMCISION, EXCISION AND INFIBULATION 3 (S. McLean, ed., 1980)); Hope Lewis, Between Irua and "Female Genital Mutilation ": Feminist Human Rights, 8 HARV. HUM. RTS. J. 1 (1995). (534.) See Hilary Charlesworth & Christine Chinken, An Introduction to the Symposium, Feminist inquiries into International Law, 3 TRANSNAT'L L. & CONTEMP. PROBS. i-iv (1993) (pointing out inherent inadequacies in United Nations' organizational structure with regard to women's human rights).

(535.) Alan Riding, Rights Forum Ends in Call for a Greater Role by UN, N.Y. TIMES, June June 26, 1993, at A2; Julie Mertus & Pamela Goldberg, A Perspective on Women and International Human Rights After the Vienna Declaration: Inside/Outside Construct, 26 INT'L L. & POL. 201, 201-16 (1994); Donna J. Sullivan, Comment, Women's Human Rights and the 1993 World Conference on Human Rights, 88 AM. J. INT'L L. & POL'Y 152, 152-63 (1994). For one example of a major international conference chat has focused on woman abuse, see the International Conference on Domestic Violence: The Hidden Problem Exposed (May (Rome, Italy). (536.) Molly Moore, Dowry Killings Rise as India's Economy Grows: Wedding Bounty Offers Kin of Groom Access to Good Life, HOUSTON CHRON., Apr. 16, 1995, at A18; Angela K. Carlson-Whitley, Comment, Dowry Death: A Violation of the Right to Life Under Article Six of the International Covenant on Civil and Political Rights, 17 U. PUGET SOUND L. REV 637, 641-43 (1994).

(537.) Jim Brooke, Machismo on Trial, The Feminist Backlash to Brazil's 'Crimes of Passion', WASH. POST, Dec. 6, 1981, at L1; Laura Sue Nelson, The Defense of Honor: Is it Still Honored in Brazil? 11 WIS. INT'L L.J.531, 534-36 (1992); see Thomas & Beasley, supra note 530, at 534-36 (examining issues of Brazilian state (538.) Peter Bate, Women Urge Nations to Ratify Anti- Violence Treaty, REUTERS LTD., Nov. 11, 1994, available in LEXIS, Nexis Library, Wire file. responsibility with regard to spousal abuse and murder); Romany, supra note 531, at 114-19 (commenting on failure of Brazil to punish murders of wives and girlfriends). (539.) See Merrill Goozner, Japanese Cultural Taboos Hide Serious Problem of Wife-Beating, CHI. TRIB., July 17, 1994, at C7. (540.) Sharon K. Hom, Female Infanticide in China: The Human Rights Specter and Thoughts Toward (An)Other Vision, 23 COLUM. HUM. RTS. L. REV.249, 251-52 (1992). For other discussions of woman abuse in the international context, see Danise Aydelott, Mass Rape During War: Prosecuting Bosnian Rapists Under International Law, 7 EMORY INT'L L. REV 585 (1993); Rhonda Copclon, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 COLUM. HUM. RTS. L. REV. 291 (1994); Katherine M. Culliton, Finding A Mechanism to Enforce Women's Right to State Protection from Domestic Violence in the Americas, 34 HARV. INT'L L.J. 507 (1993); Katherine M. Culliton, Legal Remedies for Domestic Violence in Chile and the United States: Cultural Relativism, Myths, and Realities, 26 CASE W. RES. J. INT'L L. 183 (1994); Renee Holt, Women's Rights and International Law: The Strugglef or Recognition and Enforcement, I COLUM. J. GENDER & L. 117 (1994); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, 4 UCLA WOMEN'S L.J. 59 (1993); Theodor Meron, Comment, Rape as a Crime Under International Humanitarian Law, 87 AM. J. INT'L L. 424 (1993). For a discussion of domestic violence in Ghana, see Rosemary O. Ofei-Aboague, Domestic Violence in Ghana: Some Initial Questions, in PUBLIC NATURE OF PRIVATE VIOLENCE, supra note 179, at 260-282 (also published in 4 COLUM. J. GENDER & L. I (1994).

(541.) WORLD CONFERENCE ON HUMAN RIGHTS: THE VIENNA DECLARATION AND PROGRAMME OF ACTION 54 (U.N. Dep't of Pub. Info. 1993). The United Nations' Fourth World Conference which ended in Beijing on September 15, 1995, also declared that women's rights were human rights that should supersede national traditions. Seth Faison, Women Carry Hopes as Conference Ends, N.Y. TIMES, Sept. 16, 1995, at 5. (542.) Declaration on the Elimination of Violence Against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Supp. No.49, at 334, U.N. Doc. A/481629 (1993) [hereinafter Declaration on the elimination of Violence Against Women]; see Gayle Kirscher, International News, After Victory, Women's Human Right's Movement Takes Stock, Ms., Sept.-Oct. 1993, at 20 (assessing 1993 World Conference on Human Rights in terms of women's rights). See generally Hilary Charlesworth, Transforming the United Men's Club: Feminist Futures for the United Nations, 4 TRANSNAT'L L. & CONTEMP. PROBS 421 (1994) (documenting absence of women in decision making positions at the United Nations). (543.) Declaration on the Elimination of Violence Against Women, supra note 542, at 336. (544.) See Deborah Sontag, Women Asking U.S. Asylum Expand Definition of Abuse, N.Y. Times, Sept. 27, 1993, at Al, A13 ("Many judges and immigration officers treat rape and battery even at the hands of government officials--as private acts. And many interpret a woman's transgressions of social mores, the refusal of an Iranian woman to cover her head, for instance, as wardrobe choices rather than political expression."); Women Seeking Asylum, N.Y. Times, Oct. 6, 1993, at A20 (editorial) (applauding Canada's guidelines which consider "special persecution that women may experience for political activities"). (545.) House Comm. on Foreign Affairs, Senate Comm. On Foreign Relations, 103D Cong., 2D Sess., State Dep't Country Reports on Human Rts. Practices xvi-xvii (Joint Comm. Print 1994); see Born Female--And Fettered, N.Y. Times, Feb. 19, 1994, at 18 (editorial) (heralding State Department Report as "a welcome light on matters that have long been in the dark" ).

(546.) Leslye E. Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q.313 (1995);AshleyDunn, U.S. to Accept Asylum Pleas for Sex Abuse, N.Y. Times, May 27, 1995, at Al.

(547.) Surgeon General's Workshop on Violencw and Public Health Report, supra note 417. Surgeon Generals have also spoken about woman abuse in multiple public forums. See generally, Antonia C. Novello, From the Surgeon General, U.S. Public Health Service, 267 Jama 3132 (1992). (548.) Surgeon General's Workshop on Violence and Public Health, supra note 417, at 66-77. (549.) Susan V. McLeer & Rebecca Anwar, A Study of Battered Women Presenting in an Emergency Department, 79 AM. J. Pub. Health 65, 65 (1989).

(550.) Jeane A. Grisso et al., A Population-Based Study of Injuries in Inner-City Women, 134 AM. J. Epidemiology 59, 60 (1991).

(551.) McLeer & Anwar, supra note 549, at 65.

(552.) Id. at 66.

(553.) Id.

(554.) Id

(555.) Id

(556.) Grisso et al., supra note 550, at 65.

(557.) Id. at 65-66.

(558.) Id. at 63.

(559.) Id. at 63-64.

(560.) Id at 65.

(561.) Jean Abbott et. al., Domestic Violence Against Women: Incidence and Prevalence in an Emergency Department Population, 273 Jama 1763, 1763-64 (1995).

(562.) Id. at 1764.

(563.) See supra notes 440-43 and accompanying text (discussing increased risk of battering for women at point of or after separation).

(564.) Abbott et al., supra note 561, at 1765.

(565.) Id at 1766-67.

(566.) Id. at 1765.

(567.) Id

(568.) Id.

(569.) See Carole Warshaw, Limitations of the Medical Model in the Care of Battered Women, 3 GENDER & Soc'y 506, 506-15 (1989) (discussing discrepancy between number of women seeking medical care for abuse symptoms and low rate of detection and intervention by medical staff); Rachel L. Jones, Training on Domestic Violence Urged, PHILA. Inquirer, Mar. 30, 1995, at B8 (reporting on first national conference to educate medical students about woman abuse).

(570.) Teri Randall, ACOG Renews Domestic Violence Campaign, Calls for Changes in Medical School Curricula, 267 Jama 3131 (1992).

(571.) See Novello, supra note 547 (stating that domestic violence may be underreported because of strong social pressures, fear, and denial).

(572.) Id

(573.) Doctors Are Advised to Screen Women for Abuse, N.Y. Times, June 17,1992, at A26. (574.) Council on Scientific Affairs, Violence Against Women: Relevance for Medical Practitioners, 267 Jama 3184, 3187 (1992) [hereinafter Council on Scientific Affairs]. (575.) Id at 3186-87; see generally, Judith McFarlane et al., Assessing for Abuse During Pregnancy, 267 Jama 3176, 3176-78 (1992) (examining occurrence, frequency, and severity of physical abuse during pregnancy). (576) Council on Scientific Affairs, supra note 574, at 3189; see Doctors Are Advised to Screen Women for Abuse, supra note 573, at A26.

(577.) See, e.g., Mary Louise C. Ashur, Asking About Domestic Violence: SAFE Questions, 269 Jama 2367 (1993) (letter to editor) (advocating proven set of clinical interview questions as diagnostic tool for identifying abused women); Majorie A. Bowman, Family Medicine, 270 Jama 205 (1993) (editorial) (urging physicians to question patients about abuse); Nancy S. Jecker, Privacy Beliefs and the Violent Family: Extending the Ethical Argument for Physician Intervention, 269 Jama 776 (1993) (urging physicians to seek domestic violence training and to help battered patients); Laura Kroll, AMA Family Violence Campaign, 269 Jama 1875 (1993) (providing information on coalition against domestic violence); Teri Randall, Domestic Violence Hotline's Demise: What's Next?, 269 Jama 1223 (1993) (publicizing disconnection of national hotline due to lack of funds); Jeanette M. Smith, AMA Specialty Journal Abstracts, Indicators of Woman Abuse Based on a Chart Review at a Family Practice Center, 270 Jama 28 (1993) (recommending that all women be asked about abuse because there are no accurate predictors). (578.) Special Edition, Domestic Violence, 267 Jama 3113 (1992). (579.) Council on Ethical and Judicial Affairs, AMA, Physicians and Domestic Violence: Ethical Considerations, 267 Jama 3190, 3190-91 (1992) [hereinafter Ethical Considerations]; see Nancy S. Jecker, Privacy Beliefs and the Violent Family: Extending the Ethical Argument for Physician Intervention, 269 Jama 776 (1992); Cynthia L. Pike, The Use of Medical Protocols in Identifying Battered Women, 38 Wayne L. Rev. 1941, 1942 (1992) (discussing Joint Commission on the accreditation of Health Care Organizations' order directing all hospitals to design and implement protocols for treating domestic violence victims).

(580.) Ethical Considerations, supra note 579, at 3191; Council on Scientific Affairs, supra note 574; Anne H. Flitcraft, Editorial, Violence, Values, and Gender, 267 Jama 3194, 3195 (1992); Novello, supra note 547; Nancy Kathleen Sugg & Thomas Inui, Primary Care Physicians' Response to Domestic Violence: Opening Pandora's Box, 267 Jama 3157, 3175-59 (1992). (581.) McFarlane et al., supra note 575, at 3176; Randall, supra note 577, at 3131. (582.) Novello, supra note 547, at 3132. (583.) Flitcraft, supra note 580, at 3194.

(584.) 273 Jama 1763 (1995).

(585.) Steven Keeva, Striking Out at Domestic Abuse: New ABA Commission Plans Interdisciplinary Programs to Aid Victims, A.B.A. J., Apr. 15, 1995, at 115.

(586.) See Stacey Burling, Battered Woman Takes Up Case Against Insurers, Phila. Inquirer, July 7, 1994, at B 1; Deborah Schupack, Insuring Battered Women: The Debate Goes Public, Working Woman, June 1995, at 1 1. (587.) See generally Reverand Katherine Hancock Ragsdale, The Role of Religious Institutions in Responding to the Domestic Crisis, 58 Alb. L. Rev. 1149 (1995); Blu Greenberg, Opinion, A Crime Against God, Too, N.Y. Times, July 12,1994, at Al 9; David O'Reilly, "Sabbath of Domestic Peace" Enlists Clergy Against Abuse, Phila. Inquirer, Oct. 13,1995, at B2. (588.) National Conference of Catholic Bishops' Committees on Women, Society, and the Church and on Marriage and Family Life, When I Call For Help: A Pastoral Response to Domestic Violence Against Women, 22 ORIGINS 353 (1992) (Catholic News Serv. Documentary Serv.) [hereinafter Pastoral Response]; see Bishops Denounce Abuse of Spouses, N.Y. Times, Oct. 30, 1992, at A6. (589.) Pastoral Response, supra note 588, at 353. (590.) Id at 358 n.13.

(591.) Some authors have emphasized the need to change the community's "cultural and epistemological construction of gender and violence." Lisa Frohmann & Elizabeth Merty, Legal Reform and Social Construction: Violence, Gender, and the Law, 19 Law & Soc. Inquiry 829, 834 (1994). Cf. West, supra note 11, at 15-18 (critizing those who place the entire blame for problems on the community and none on the law).

(592.) See John O'Connor, Fawcett in "Burning Bed," N.Y. Times, Oct. 8, 1984, at C18 (reviewing television drama about abused wife who killed her sleeping husband). (593.) U.S. Comm. on Civil Rights, Under the Rule of Thumb: Battered Women and the Administration of Justice (1982).

(594.) Bachman, supra note 423.

(595.) Dawson & Langan, supra note 425.

(596.) Violence Against Women: A Week in the Life of America, supra note 417, at 26-29. (597.) Violence Against Women, Pub. L. No. 103-322, [Sections] 40001, 108 Stat 1796, 1902 (codified as amended in scattered sections of Titles 8, 16, 28 and 42 of the United States Code). (598.) Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence, 1970-1990, 83 J. CRIM. L. & CRIMINOLOGY 46, 54 (1992) (discussing Scott v. Hart, No. C-76-2395 (N.D. Cal., filed Oct. 28, 1976)).

Today there are more than twenty law school clinics and at least six seminars dedicated to representation of abused women. Naomi Cahn & Joan Meier, Domestic Violence and Feminist Jurisprudence: Towards a New Agenda, 4 Pub. Interest L.J. 339 (1995).

(599.) Zorza, supra note 598, at 54.

(600.) Id

(601.) 396 N.Y.S. 2d 974 (N.Y. App. Div. 1977), aff'd, 419 N.Y.S. 2d 901 (N.Y 1979). (602.) Bruno v. Codd, 419 N.Y.S. 2d 901, 907 (N.Y. 1979).

(603.) Zorza, supra note 598, at 58.

The latest major case against a police department was brought by the relatives of decedent Maria Navarro who sued the Sheriff of Los Angeles and the County of Los Angeles for according a lower priority to domestic violence 911 emergency calls than to non-domestic violence calls. Navarro v. Block, No. 94-55701, 1995 U. S. App. Lexis 29289 (10th Cir. Oct. 19, 1995). Maria Navarro was celebrating her birthday at her home with her relatives and friends when the brother of her estranged husband called to warn her that Raymond Navarro was on his way to kill her and any others present. Id. She immediately called 911 and announced that her husband, who was under a restraining order, was on his way to kill her. The dispatcher told her "just call us if he comes." Fifteen minutes later, Raymond shot and killed Maria and four other people and injured two more. Id the Tenth Circuit reversed the federal district court's grant of summary judgment on the Navarro's equal protection claim that the county had a custom of not classifying domestic violence 911 calls as emergencies. Id

(604.) LaFave & Scott, supra note 282, at 32 n.13; Schopp et al., supra note 438, at 78; Lawrence W. Sherman, The Influence of Criminology on Criminal law: Evaluating Arrests for Misdemeanor Violence, 83 J. Crim. L. & Criminology 1, 11-12 (1992). (605.) Schopp et al., supra note 438, at 78; Toni L. Harvey, Comment, Batterers Beware: West Virginia Responds to Domestic Violence with the Probable Cause Warrantless Arrest Statute, 97 W. Va. L. Rev. 181, 185 (1994). (606.) Zorza, supra note 598, at 51-52.

(607.) Id. at 51.

(608.) Schopp et al., supra note 438, at 78.

(609.) Diana R. Stallone, Decriminalization of Violence in the Home: Mediation in Wife Battering Cases, 2 Law & Ineq. J. 493, 494 (1984); Lisa G. Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 Harv. Women's L.J. 57 (1984).

(610.) See Sherman, supra note 604, at 10, 13-24.

(611.) Peter Salem and Ann L. Milne, Making Mediation Work in a Domestic Violence Case, 17 Fam. Advocate, Winter 1995, at 1, 34.

(612.) Id. at 36.

(613.) See, e.g., Andree G. Gagnon, Ending Mandatory Divorce Mediation for Battered Women, 15 Harv. Women's L.J. 272 (1992); Scott H. Hughes, Elizabeth's Story: Exploring Power Imbalances in Divorce Mediation, 8 Geo. J. Legal Ethics 553 (1995); Lerman, supra note 609; Stallone, supra note 609. Contra Allan Edward Barsky, Issues in the Termination of Mediation Due to Abuse, 13 Mediation Q. 19 (1995); Linda K. Girdner, Mediation Triage: Screening for Spouse Abuse in Divorce Mediation, 7 Mediation Q.365 (1990).

It is inappropriate to mediate child custody disputes when the mother has been abused. Charlotte Germane et al., Mandatory Custody Mediation and Joint Custody Orders in California: The Danger for Victims of Domestic Violence, I Berkeley WOMEN'S L.J. 175 (1985); Barbara J. Hart, Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation, 7 Mediation Q. 317 (1990). (614.) Missouri Task Force on Gender and Justice, Report of the Missouri Task Force on Gender and Justice, 58 Mo. L. Rev. 485, 489 (1993). (615.) See Karen Czapanskiy, Domestic Violence, the Family, and the Lawyering Process: Lessons from Studies on Gender Bias in the Courts, 27 Fam. L.Q. 247, 247-49 (1993) (noting presence of gender bias in every jurisdiction studied); Lynn Hecht Schafran, The Obligation to Intervene: New Direction From the American Bar Association Code of Judicial Conduct, 4 Geo. J. Legal Ethics 53, 55-56 (1990) (revealing gender bias in functioning of court systems); see also Marina Angel, Sexual l{arassment By Judges, 45 U. Miami L. Rev. 817, 818 n.6 (1991) (using reports to document incidents of and statistics on sexual harassment by judges). (616.) The Task Force Report was later published in a law review. See Report of the New York Task Force on Women in the Courts, 15 Fordham Urb. L.J. 11, 47 (1986).

(617.) Sarah Eaton &Ariella Hyman, The Domestic Violence Component of the New York Task Force Report on Women in the Courts: An Evaluation and assessment of New York City Courts, 19 Fordham Urb. L.J. 391, 398 (1992). (618.) Id at 500-09. (619.) A terrifying example of judicial insensitivity to the legitimate concerns of an abused woman was related by Professor Karen Czapanskiy:

A witness testfying before the committee studying gender bias in Maryland . . . related the reasons a judge gave for

denying her petition for a protection order after her husband had threatened her life with a gun:

[The judge] took a few minutes to decide on the matter and he looked at me and he said, "I don't believe anything

that you're saying." He said, "The reason I don't believe it is because I don't believe anything like this could happen

to me. If I was you and someone had threatened me with a gun, there is no way that I would continue to stay with

them. There is no way that I could take that kind of abuse from them. Therefore, since I would not let that happen to

me, I can't believe that it happened to you." She continued:

"I have just never forgotten those words.... When I left the courtroom that day, I felt very defeated, very defenseless,

and very powerless and very hopeless, because not only had I gone through an experience which I found to be very

overwhelming, very trying, an experience which almost cost me my life, but to sit up in court and make myself open up

and recount all my feelings and fear and then have it thrown back in my face as being totally untrue just because this

big man would not allow anyone to do this to him, placed me in a state of shock which probably hasn't left me yet."

Czapanskiy, supra note 615, at 252 (quoting Gender Bias in the Courts: Report of the Maryland Special Joint Committee on Gender Bias in the Courts 2-3 (1989) (describing "metaphorical re-battering" of women denied protection by judges)). (620.) Eaton & Hyman, supra note 617, at 407.

(621.) See Kirk R. Williams & Richard Hawkins, The Meaning of Arrest for Wife Assault, 27 Criminology 163 (1989). (622.) Id at 172.

(623.) Id. at 170.

(624.) Id at 170-72.

(625.) Id. at 172.

(626.) See Lawrence W. Sherman and Richard A. Beck, The Specific c Deterrent Effects of Arrest for Domestic Assault, 49 Am. Soc. Rev. 261, 261 (1984); Lawrence W. Sherman & Ellen G. Cohn, The Impact of Research on Legal Policy: The Minneapolis Domestic Violence Experiment, 23 Law & Soc'y Rev. 117 (1989).

(627.) See Sherman, supra note 604, at 2 (reporting that by 1991, 15 states and the District of Columbia had mandatory arrest statutes); Harvey, supra note 605, at 185 (discussing warrantless arrests in domestic violence situations). (628.) Symposium on Domestic Violence, 83 J. Crim. L. & Criminology 137 (1992). This symposium issue starts with an Introduction by Lawrence W. Sherman, The Influence of Criminology on Criminal Law: Evaluating Arrests for Misdemeanor Domestic Violence, 83 J. Crim. L. & Criminology I (1992). It contains four studies reporting on the completed replications of the Minneapolis experiment. See Richard A. Berk et al., A Bayesian Analysis of the Colorado Spring Spouse Abuse Experiment, 83 J. Crim. L. & Criminology 170(1992);Franklyn W. Dunford, The Measurement of Recidivism in Cases of Spouse Assault, 83 J. Crim. L. & Criminology 120 (1992); J. David Hirschel & Ira W. Hutchinson, III, Female Spouse Abuse and the Police Response: The Charlotte, North Carolina Experiment, 83 J. Crim. L. & Criminology 73 (1992); Lawrence K. Sherman et al., The Variable Effects of Arrest on Criminal Careers: The Milwaukee Domestic Violence Experiment, 83 J. Crimi. L. & Criminology 137 (1992). The replications are also reported by J. David Hirschel et al., Charlotte Spouse Assault Replication Project: Final Report (Nat'l Inst. of Just., 1990); Anthony M. Pate et al., Metro-Dade Spouse Abuse Replication Project Draft Final Report (Nat'l Inst. of Just., 1991); Franklyn W. Dunford, et al., The Role of Arrest in Domestic Assault: The Omaha Police Experiment, 28 Criminology 183 (1990) [hereinafter Dunford, The Role of Arrest in Domestic Assault]. (629.) Symposium on Domestic Violence, supra note 628. (630.) Sherman, supra note 604, at 25.

(631.) Id at 37.

(632.) Id at 38.

(633.) Cynthia G. Bowman, The Arrest Experiments: A Feminist Critique, 83 J. Crim. L. & Criminology 201, 202 (1992) For a discussion of the inadequacy of police response and failure to prosecute abusers, see Kathleen J. Ferraro, Cops, Courts, and Woman Battering, in Violence Against Women: The Bloody Footprints 165 (Pauline B. Bart & Eileen G. Moran eds., 1993). (634.) Zorza, supra note 598, at 71. (635.) Id

(636.) Bowman, supra note 633, at 207 (citing Peter Jaffe et al., The Impact of Police Charges in Incidents of Wife Abuse, I J. Fam. Violence 37, 46-48 (1986)), see generally, Mary Ann Dutton Empowering and Healing the Battered Woman: A Model for Assessment and Intervention 10-11 (1992) (promoting assessment of causes and effects of woman abuse). (637.) Lisa A. Frisch, Research That Succeeds, Policies That Fail, 83 J. Crim. L. & Criminology 209 (1992). (638.) Lisa G. Lerman, The Decontextualization of Domestic Violence, 83 J. Crim. L. & Criminology 217,219 (1992). (639.) Daniel B. Polsby, Supressing Domestic violence With Law Reforms, 83 J. Crim. L. & Criminology 250, 252 (1992). (640.) Alana Bowman, A Matter of Justice: Overcoming Juror Bias in Prosecutions of Batterers Through Expert Witness Testimony of the Common Experiences of Battered Women, 2 S. Cal. Rev. L. & Women's Stud. 219,219 (1992). (641.) See Joan M. Schroeder, Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer 76 Iowa L. Rev. 553 (1991).

(642.) Bowman, supra note 640, at 220.

(643.) Crocker, supra note 428, at 130.

(644.) Some women are "less sympathetic jurors in victimization cases." Susan Murphy, Assisting the Jury in Understanding Victimization: Expert Psychological Testimony on Battered Woman Syndrome and Rape Trauma Syndrome, 25 Colum. J.L. & Soc. Probs. 277, 280 (1992).

(645.) Expert testimony was first introduced in the trial of an abused woman who killed her abuser in Ibn-Thomas v. United States, 407 A.2d 626,631 (D.C.1979). Regina A. Schuller & Neil Vidmar, Battered Woman Syndrome Evidence in the Courtroom, 16 Law & Hum. Behav. 273 (1992).

(646.) Dobash & Dobash, supra note 418, at 438.

(647.) Schuller & Vidmar, supra note 645, at 281.

(648.) See Crocker, supra note 428, at 130; Norman Finkel et al., The Self-Defense Defense and Community Sentiment, 15 Law & Hum. Behav. 585 (1991).

(649.) See Frinkel at al., supra note 648, at 601 (suggesting successful tactics for self-defense arguments). (650.) Schuller & Vldmar, supra note 645, at 284 (citing C.P Ewing, Battered Women Who Kill: Psychological Self-Defense as Legal Justification (1987) and Lenore L. Walker, Terrified Love: Why Battered Women Kill and How Society Responds (1990)). Lenore Walker found that in 25% of the 150 trials where she testified about bartered women who killed, the women were fully acquired. Id. Ewing's review of 44 trials, showed a one-third acquittal rate in the 26 cases where expert testimony was permitted and a 100% conviction rate in the 18 cases where it was excluded. Id

(651.) Experimental studies found that expert testimony and varied jury instructions could lead to verdicts that were more favorable to abused women's claims of self-defense. See Finkel et al., supra note 648, at 586; Regina A. Schuller, The Impact of Rattered Woman Syndrome Evidence on Jury Decision Processes, 16 Law & Hum. Behav. (1992); Schuller & Vidmar, supra note 645, at 284-86. (652.) Schuller & Vidmar, supra note 645, at 284 ("Jurors provided with a not guilty by reason of self-defense alternative as opposed to a not guilty by reason of insanity alternative were more likely to render not guilty verdicts.") (citing Diane R. Follingstad et al., 13 Law & Hum. Behav. 253 (1989)). (653.) Finkel et al., supra note 648, at 596.

(654.) Id at 600.

(655.) See Marcus, supra note 283, at 1723 (quoting Judge Learned Hand in United States ex rel McCann v. Adams, 126 F.2d 774, 775-76 (2d Cir. 1942)).

The major English case establishing the right of a criminal jury to refuse to follow a judge's instruction to convict was Bushell's Case, 89 Eng. Rep. 2 (K.B. 1670), reported extensively in Bushell's Case, 6 Cobb. St. Tr. 999 (K.B. 1670). William Penn, later the founder of the Commonwealth of Pennsylvania, and William Mead, both Quakers, were charged with "unlawfully and tumultuously" assembling "to the disturbance of the peace," Penn's Case 6 Cobb. St. Tr. 951,955 (1670), because they preached on Gracechurch Street, London, on august 14, 1670. The jury refused to convict. Despite repeated instructions, the jury found them "Guilty of speaking in Gracechurch Street," id at 962-65, and finally "Not Guilty." Id at 966. Because the trial judge believed the jurors had acquitted against the weight of the evidence and contrary to his instructions, he fined the jurors forty marks each and jailed them until they paid. Id at 967-68. Edward Bushell, the foreman, brought a habeas corpus action and the Court of King's Bench held that trying to control a jury by fine or imprisonment was illegal, Bushell's Case, 89 Eng. Rep. 2 (K.B.1670). See Lord Ddennig, Landmarks in the Law 135-52 (1984) (discussing Penn 's Case and Bushell's Case extensively); 6 Sir William Holdsworth, A History of English Law 388 (2d ed. 1987) (1924) (discussing Bushell's holding that controlling a jury by fine and imprisonment was illegal).

(656.) Schuller, supra note 651, at 604, 613.

(657.) Patrick A. Langan & John M. Dawson, U.S. Dep't of Justice, Spouse Murder Defendants in Large Urban Counties (1995). These researchers relied on the same database, 1988 statistics for all spousal murder cases in the nation's 75 largest counties, id at iii, that they had relied on for their 1994 report, Murder in Families. See supra notes 425-26, 462 and accompanying text (discussing reports). (658.) LANGAN & DAWSON, supra note 657, at iii.

(659.) Id at 7.

(660.) Id

(661.) Id. at iii.

(662.) Id. at iv.

(663.) Dr. Watson was a psychiatrist who was a faculty member of the law schools of the university of Pennsylvania and the university of Michigan. See generally Andrew S. Watson, Reflections on the Teaching of Criminal Law, 37 U. DBT. L.J. 701 (1960) (presenting observations on the nature, concerns, and discomforts law students face when studying criminal law). (664.) Id. at 703 (describing "the need to achieve order and predictability in relationship to other people in the world and the world around"). (665.) See generally Albert Camus, The Myth of Sisyphus (Justin O'Brien trans., 1955). (666.) Watson, supra note 663, at 709. (667.) Id at 712.

(668.) Benjamin N. Cardozo, The Nature of Judicial Process 126 (1921).

(669.) Oliver W. Holmes, The Path of Law, in Collected Legal Papers 167, 173 (1920). For the continued utility of this concept, see generally Michael Dorf, Prediction and the Rule of Law, 42 UCLA L. REV. 651, 653 (1995).

(670.) Cardozo, supra note 668, at 112.

(671.) G.S. Kirk & J.E. Raven, The Presocratic Philosophers: A Critical History With A Selection of Texts 186-87 (1963). Heraclitus was cited by Plato for the view that, " 'all things are in flux.' " Id; see generally, David Stern, Heraclitus' and Wittgenstein's River Images: Stepping Twice into the Same River, 1991 The Monist 579 (examining uses of imagery in metaphysical discussions about nature and change).

(672.) West Publishing Company publishes a Black Letter Series. The introduction to each book in the series explains: "This 'Black Letter' Series is designed to help a law student recognize and understand the basic principles and issues of law covered in a law school course." John D. Calamari & Joseph M. Perillo, Contracts v (2d ed. 1990). The pamphlets purport to set out the law in outline form.

(673.) Legalines are published by Harcourt, Brace Javariovich Legal and Professional Publications. These study aids are also in outline form and are geared to facilitate the use of specific casebooks. E.g., Jonathan Neville, Constitutional Law: Adapted to the Twelfth Edition of Gunther Casebook (9th ed. 1992). Also sold are Flasher: Winning in Law School Flash Cards-Jonathon C. Carlson, Criminal Law (discussing all of criminal law on 400 cards with no publisher and no date); see also Bruce Shenitz, It's Holmes, Cardozo, and Who ? Emanuel, N.Y. Times, July 22, 1994, at B9 (discussing how students look to study aids for "black letter law").

(674.) Guinier, Becoming Gentlemen, supra note 7, at 45-46. Professor Guinier has explained how the Socratic method is used to expose students to the law schools' model of how lawyers are to reason and act.

This model lawyer displays all the characteristics Gilligan and others attributed to male patterns of reasoning. He is a lawyer who uses rights-based reasoning to analyze legal problems in terms of competing, mutually exclusive claims. He can argue all sides of any issue, because he has no personal stake in any of his arguments. In form, the model lawyer also demonstrates characteristics traditionally associated with maleness: aggression, willingness to fight, emotional detachment, and exaggerated bravado. Women who learn that lawyering equals maleness may be stifled in their ability to form a whole, integrated professional identity.

Id., at 46 n.ll6; see Angel, Women in Legal Education, supra note 155, at 809-10 n.61 (critiquing teaching by Socratic method).

(675.) Guinier, Becoming Gentlemen, supra note 7, at 47.

(676). See Janoff, supra note 148 (describing study on how women respond to traditional teaching methods). (677.) Guinier, Becoming Gentlemen, supra note 7, at 46-48.

The hierarchy within the large first-year Socratic class also includes a hierarchy of perspectives. Those who most identify with the institution, its faculty, its texts, and its individualistic perspectives experience little dissonance in the first year. On the other hand [there] are students who import an ambivalent identification with the institution, who resist competitive, adversarial relationships, who do not see themselves in the faculty, who vacillate on the emotionally detached, "objective" perspectives inscribed as "law," and who identify with the lives of persons who suffer from existing political arrangements. These students experience much dissonance.

Id at 47. See generally Linda Wightman, Law School Admissions Council Research Report: Analyses of LSAT Performance and Patterns of Application for Male and Female Law School Applicants 94-102 (Dec. 1994); Nina J. Crimm, A Study: Law School Students ' Moral Perspectives in the Context of Advocacy and Decision--Making Roles, 29 New England L. Rev. 1 (1994). (678.) Guinier, Becoming Gentlemen, supra note 7, at 61. (679.) Id. at 68-69 ("Although some justify hierarchy as separating 'the men from the boys,' many of our respondents perceive the process as legitimating the separation of 'the white men from the white women and people of color.' "). (680.) Janoff, supra note 148, at 193-94. (681.) See Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829, 837 (1990) ("Asking the Woman Question" to show how purportedly objective and neutral rules have disparate gender impact). (682.) Tex. Penal Code Ann. art. 1220 (West 1925) (repealed 1973 Tex. Gen. Laws ch. 399, [Section] 3(a)). (683.) Marina Angel, Substantive Due Process and the Criminal Law, 9 Loy. U. Chi. L.J. 61, 77 (1977) [hereinafter Angel, Criminal Law]. "A justification, such as self-defense, looks to acts and circumstances surrounding the event; an excuse, such as insanity, looks to the personal attributes of the actor." Id at n.61. Adultery on the part of the wife can be viewed as a justification or partial justification for homicide since it is a circumstance taking place at or near the time of the killing. Id at 77. However, it can also be viewed as an excuse or partial excuse since it affected the emotions of the killer. Id For a discussion of how abusive men claim their assaults and homicides are both excused and justified, see Coker, supra note 435, at 75-76, 106. (684.) See Barr v. State, 172 S.W.2d 322, 325 (Text Crim. App. 1942); Reed v. State, 59 S.W.2d 122, 123-24 (Text Crim. App. 1933). (685.) Lewis Carroll, Alice in Wonderland 163 (Donald J. Gray ea., 1992).

(686.) See Jeremy D. Weinstein, Note, Adultery, Law, and the State: A History, 38 HASTINGS L.J. 195, 232-36 (1986) (describing state laws that once permitted adultery as full justification for murder). (687.) Recently in Maryland, "[a] husband who admitted slaying his wife after catching her in bed with another man was sentenced to 18 months in prison by a judge who said such a killing was understandable....," Slaying of Wife Draws an 18-Month Sentence, Phila. Inquirer, Oct. 19, 1994, at A6.

Judge William S. Matthews of Hamilton County (Ohio) gave a husband with a criminal record for murder, rape, and armed robbery, a three- to fifteen-year sentence for beating his estranged wife on the head with a crowbar and knocking out teeth and breaking the jaw of her daughter. When releasing the husband after he served seven months, Judge Matthews explained: " 'The guy walked into his house with his wife in his bed with another guy. It's enough to blow any guy's cool if he's any kind of man.' " Shelia Weller, More of America's Most Sexist Judges, Redbook, Dec. 1994, at 88, 90-91.

(688.) Alan Patrick Herbert, Misleading Cases in the Common Law 6 (1935).

In 1985,1 participated in a study of sex bias in substantive criminal law. See Nancy S. Erickson, Final Report: "Sex Bias in the Teaching of Criminal Law ", 42 Rutgers L. REV. 309, 309 (1990) (listing assistance by Marina Angel in preparation of report). We reviewed topics including the reasonable man and the abused woman. Participating in that study inspired my presentation on "Battered Women Who Kill" at the 1986 Association of American Law Schools conference. Marina Angel, The "Reasonable Man, " Provocation and the Battered Wife Syndrome (distributed during address at 1986 meeting of the American Association of Law Schools (Jan. 5, 1986)) (on file with author). There, I focused on the reasonable man, insanity, and immediacy, and contrasted common law homicide doctrines of provocation and self-defense with the Model Penal Code version of these doctrines. That effort provided the foundation for my current views of substantive criminal law regarding the abused wo man who kills her abuser.

(689.) Oliver Wendell Holmes, Jr, The Common Law 51 (1881).

(690.) Martha Chamallas, Feminist Constructions of Objectivity: Multiple Perspectives in Sexual and Racial Harrassment Litigation, 1 Tex. J. Women & L. 95, 129 (1992); Nancy S. Ehrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 YALE L.J. 1 1 77,1215- 19 (1990); Kathleen A. Kenealy, Sexual Harrassment and the Reasonable Woman Standard, 8 Lab. Law 203, 204-10 (1992). For a discussion on whether there should be a reasonable battered woman standard, see Kit Kinports, Defending Battered Women's Self-Defense Claims, 67 OR L. REV. 393, 415-22 (1988). (691.) Angel, Criminal Law, supra note 683, at 77 (describing common law principles of criminal law). (692.) Id at 77 n.61.

(693.) Id.

(694.) Id. at 78 n.64.

(695.) The lawyer for Lorena Bobbitt explained that under Virginia law, Lorena Bobbitt stood a better chance for an acquittal on grounds of insanity than on self-defense. John Bobbitt's later arrest for assaulting his fiancee adds support to Lorena Bobbitt's argument that she was at risk of additional and severe physical abuse. (696.) For a discussion of how purported facts about women presented in casebooks perpetuate negative stereotypes and laws which disadvantage women, see Ann Althouse, The Lying Woman, the Devious Prostitute, and Other Stories from the Evidence Casebook, 88 Nw. U. L. Rev. 914, 916 (1994). (697.) See Mahoney, Separation Attack, supra note 430, at 6 (noting that many assaults on women "were not cognizable until the feminist movement named and explained them"); Mahoney, Women's Lives, supra note 440, at 59 (stating that many aspects of female oppression were traditionally hidden). Jane Mills describes traditional male definitions of words for woman and about woman. For example, a synonym for woman is bitch. Jane Mills, Womanwords--A Dictionary of Words about Women 27-28 (1989). (698.) See Anne M. Coughlin, Excusing Women, 82 Cal. L. Rev. 1, 5(1994) (arguing that battered women syndrome "institutionalizes . . . negative stereotypes of women"). (699.) See Elizabeth Rapaport, The Death Penalty and the Domestic Discount, in Public Nature of Private Violence, supra note 179, at 224, 228-32 (describing rulings that mitigated punishment for men who killed their wives). (700.) 421 U.S. 684 (1975).

(701.) Id. at 704; see also Angel, Criminal Law, supra note 683, at 99-108 (analyzing Mullaney and noting that in Patterson v. New York, 432 U.S. 197, 210 (1977), Court distinguished Mullaney, in that affirmative defense in Mullaney related directly to an element of offense).

(702.) Model Penal Code [Sections] 210.3 cmt.5 (1962) (listing categories of adequate provocation, including physical contact, unlawful arrest, and witnessing adultery). Herbert Wechsler, the author of the Model Penal Code, explained the rationale for provocation:

[T]he more strongly [most persons] would be moved to kill by the circumstances of the sort that

provoked the actor to the homicidal act, and the more difficulty they would experience in resisting the

impulse to which he yielded, the less does his succumbing serve to differentiate his character from theirs. Herbert Wechsler & Jerome Michael, A Rationale of the Law of Homicide 11, 37 Colum. L. REV. 1261, 1281 (1937)

(703.) LaFave & Scott, supra note 282, at 657-58. (704.) Model Penal Code [Sections] 210.3 cmt. 5 (1962). (705.) Donna Coker, studying battering husbands who killed in the United States, and Susan Edwards, researching in England, reached similar conclusions. See Coker, supra note 435, at 84 (describing significant overlap between wife abuse and murder); Susan S.M. Edwards, A Socio-Legal Evaluation of Gender Ideologies in Domestic Violence Assault and Spousal Homicides, 10 Victimology 186 (1985) (categorizing domestic violence and spousal homicide as single and related species).

(706.) Coker, supra note 435, at 98 (describing standard pattern of blaming female victim for provoking violent behavior).

(707.) Id. at 106- 11 (describing "male innocence/female guilt story" that is used to justify spousal abuse). (708.) See supra note 525 and accompanying text (reporting Simpson's letter to public after his former wife's murder).

(709.) Coker, supra note 435, at 89-94. (710.) Holly Maguigan, Battered Women and Self-defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379, 416 (1991).

(711.) Id. at 419-20.

(712.) Coker, supra note 435, at 102 ("If adultery is the `paradigm' heat of passion event, anger is the paradigm heat of passion emotion.").

(713.) Model Penal Code [Sections] 210.3(1) (b) (1962).

(714.) Id. [Sections] 3.04(1).

(715.) Id. [Sections] 210.3.

(716.) Id.

(717.) Id. [Sections] 210.3 cmt.5.

(718.) Id.

(719.) Id.

(720.) Id.

(721.) Id. [Sections] 210.3 cmts. 3, 5.

(722.) Id. [Sections] 210.3 n.46.

(723.) Id. [Sections] 210.3 cmt.5.

(724.) Id. [Sections] 3.04(1).

(725.) Model Code Section 3.09 deals with reckless or negligent use of deadly force in self-defense. This section refers back to sections 2.20 (c) and (d) defining recklessly and negligently. The two definitions are identical except that when acting recklessly the individual "consciously disregards" a risk and when acting negligently the individual "should be aware" of a risk but is not. Both sections require a "gross deviation from the standard of conduct that a law abiding person would observe in the actor's situation." Recklessness as to the need for self-defense permits a conviction of manslaughter; negligence permits a conviction of negligent homicide. Model Penal Code [Subsections] 3.09(2), 3.02(2), 2.02(10).

(726.) Id. [Sections] 3.04 cmt. 2(c); see Kinports, supra note 690, at 422-26 (discussing imminence in context of battered women's self-defense claims).

(727.) Maguigan, supra note 710, at 422-26.

(728.) See id. at 414 n. 119 (criticizing inconsistent use of terms "immediate" and "imminent"). (729.) Model Penal Code [Sections] 3.04 cmt. 2(c) (1962). Professors Kadish and Paulson in their leading criminal law text gave the following example:

In an English motion picture, a cuckolded husband imprisons and chains his wife's latest lover in an

abandoned cellar with the announced intention of killing him after the passage of sufficient time for the

stir over his absence to quiet down, probably several months. Must the intended victim wait until the final

moment when the husband is about to commit the fatal act, or may he kill the husband in self-defense at

any time during the period of imprisonment if he can succeed in laying hands upon him? Sanford Kadish & Monrad Paulson, Criminal Law 498-99 (3d ed. 1975). This hypothetical does not use the typical situation of an abused wife but rather a bizarre situation based on a traditional stereotype of the cuckolded husband.

(730.) Model Penal Code [section] 3.04 cmt. 4(a) (1962).

(731.) Model Penal Code [section] 3.04(2)(b)(iii)(1) (tenative draff No. 8, 1958). (732.) Model Penal Code [section] 3.04(2)(b)(ii)(A) (1962).

(733.) Kinports, supra note 690, at 396.

(734.) Id. at 419-20.

(735.) Maguigan, supra note 710, at 383.

(736.) Robin West stated:

Despite a superficial resemblance to literary interpretation, adjudication is not primarily an interpretive

act of either a subjective or objective nature; adjudication, including constitutional adjudication, is an

imperative act. Adjudication is in form interpretive, but in substance it is an exercise of power in a way

that truly interpretive acts, such as literary interpretation, are not. West, supra note 11, at 93.

(737.) Kinports, supra note 690, at 408.

(738.) Id at 419. "[A] reasonable battered woman standard would not defeat any of the goals of the criminal system [and] would serve the ends of justice by helping the jury properly determine what a reasonably prudent person would have done under the circumstances that confronted the defendant." Id at 420.

(739.) Id at 422-23. (740.) Id at 423.

(741.) Id at 424-25.

(742.) Maguigan, supra note 710, at 432-33 (comparing author's study with Joy A. Chapper & Roger A Hanson, National Center For State Courts, Understanding Reversible Error In Criminal Appeals: Final Report 38 (1990)).

(743.) Id at 434.

(744.) Id at 384-85. (Maguigan believed that abused women's homicide appeals were "likely to contain an over-representation of non-confrontational cases." ).

(745.) Id at 409-413.

(746.) Id. at 413.

(747.) Id. at 415.

(748.) Id. at 417.

(749.) Id at 419.

(750.) Id at 386.

(751.) Scheppele, Just the Facts Ma `am, supra note 48, at 125. ("[T]he law is still sexist, but now in the name of fact rather than doctrine. " ).

(752.) Coker, supra note 435, at 98 (quoting James Ptaeck, Why Do Men Batter Their Wives?, in Feminist Perspectives On Wife Abuse 133, 148 (Kens) Yllo & Michelle Bogard eds., 1988)). (753.) Id. at 91.

(754.) Crocker, supra note 428, at 121.

(755.) Phyllis Chesler, Women in the Criminal Justice System: A Woman's Right to Self-Defense: The Case of Aileen Carol Wuornos, 66 ST. John's L. Rev. 933, 936 (1993). (756.) Id at 936. But see Kinports, supra note 690, at 463-64 (stating that few juries have acquitted battered women by reason of insanity).

(757.) Chesler, supra note 755, at 938.

(758.) Gloria Killian, Equal Justice for Some, 2 Rev. L. & Women's Stud 5 (1992). (759.) Anne C. Scales, Feminists in the Field of Time, 42 FLA. L. Rev. 95, 100 ( 1990). (760.) Scheppele, Just the Facts Ma `am, supra note 48, at 127. Immediacy also exists in the traditional common law doctrine of fresh complaint in rape cases. The doctrine was rejected by Holmes in his opinion as Chief Justice of the Massachusetts Supreme Court in Commonwealth v. Cleary, 172 Mass. 175 (1898). Holmes stated the facts as follows:

The alleged rape was between nine and ten o'clock in the evening. The girl was not out of the alleged

ravisher's company until half past ten, when she entered a friend's house, crying, excited, and frightened.

The friend took her home at twelve. She was still frightened and trembling, and her mother put her to bed.

She made the complaint the next morning. Id at 177. Holmes concluded:

The rule that in trials for rape the government may or must prove that the woman concerned made

complaint soon after the commission of the offense is a perverted survival of the ancient requirement

that she should make hue and cry as a preliminary to bringing her appeal. Id at 176. Holmes rejected the need for fresh complaint, on the grounds that "it cannot be justified by the general principles of evidence which now prevail. In general, you cannot corroborate the testimony of a witness by proof that he has said the same thing before, when not under oath." Id

(761.) Scales, supra note 759, at 112.

(762.) Id

(763.) Edwards, supra note 705, at 201.

(764.) Crocker, supra note 428, at 127, 144; see also M.J. Willoughby, Comment, Rendering Each Woman Her Due: Can a Battered Woman Claim Self-Defense When She Kills Her Sleeping Batterer?, 38 Kan. L. Rev. 169, 182 (1989) (suggesting that once "cycle of violence has escalated . . . harm is always imminent"). (765.) Charles P. Ewing, Psychological Self-Defense: A Proposed Justification for Battered Women Who Kill, 14 Law &: Hum. Behav. 579, 586 (1990) [hereinafter Ewing, Psychological Self-Defense]; see generally Charles P. Ewing, Battered Women Who Kill: Psychological Self-Defense As Legal Justification (1987). (766.) Ewing, Psychological Self-Defense, supra note 765, at 587 (quoting E. Schneidman, Deaths Of Man 162 (1974)). (767.) Id at 588-89 (stating that traditional rule of no retreat within one's home placed greater value on man's control of his "castle" than on human life). (768.) Coker, supra note 435, at 104.

(769.) Id at 103-11.

(770.) Ewing, Psychological Self-Defense, supra note 765, at 579.

(771.) Stephen J. Morse, The Misbegotten Marriage of Soft Psychology and Bad Law: Psychological Self-Defense as a Justification for Homicide, 14 Law & Hum. BEHAV. 595 (1990). (772.) Id at 603-04.

(773.) Id at 604.

(774.) Some states have enacted statutes that allow the introduction of evidence of past abuse and expert testimony to explain its effects. Texas has taken the lead with the broadest provision that is not restricted to the case of the abused woman who kills but also covers other victims of abuse. Its statute on evidence in criminal actions provides:

(b) In a prosecution for murder, if a defendant raises as a defense a justification provided by . . . [the] Penal Code, the defendant, in order to establish the defendant's reasonable belief that the use of force or deadly force was immediately necessary, shall be permitted to offer:

(1) relevant evidence that the defendant had been the victim Of acts Of family violence committed by the deceased, as family violence is defined in Section 71.01, Family Code;


(2) relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to family violence that are the basis of the expert's opinion.

TEX. CRIM. PROC. CODE ANN. [Section] 38.36(b) (West 1994). Family violence is defined in Texas as "an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, or assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, or assault." Tex. FAM. CODE ANN. [Section] 71.01(b)(2)(A)(West 1993). Children accused of killing an abusive parent have attempted to introduce context evidence of abuse and expert testimony. See Carin C. Azarcon, Battered Child Defendants in California: The Admissibility of Evidence Regarding the Effects of Abuse on a Child's Honest and Reasonable Belief Imminent Danger, 26 PAC. L.J. 831 (1995). (775.) M.L. Cross, Eligibility of Women As Jurors, 157 ALR 441 (1944). Twenty-eight states allowed women to serve as jurors, but in fifteen service was voluntary. (776.) This was altered by the Civil Rights Act of 1957, 28 U.S.C. [Section] 1861 (1957). (777.) Hoyt v. Florida, 368 U.S. 57, 62 (1961). The states granting women automatic exemption from jury service were Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, Nevada, New Hampshire, New York, North Dakota, Rhode Island, Tennessee, Virginia, Washington, and Wisconsin. Id. at 62 n.6. It was not until 1966 that all states allowed women to serve on juries. Shirley S. Abrahamson, Justice and Juror, 20 GA. L. REV. 257, 269 (1986). Alabama was the last state to acquiesce. Id. (778.) 329 U.S. 187 (1946).

(779.) Id. at 193.

(780.) Sara S. Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 COLUM. L. REV. 1433, 1434 (1984). (781.) Ballard, 329 U.S. at 193.

(782.) Id.

(783.) Id. at 193-94. Justice Douglas wrote:

To insulate the courtroom from either [sex] may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.


(784.) Id. at 195.

(785.) Id.

(786.) Justice Burton's dissent relied on the toilet problem and on the argument that distinctions between men and women have been eliminated; therefore, it made no difference whether women were represented or not; men could represent women. Id. at 205 (Burton, J., dissenting).

(787.) 332 U.S. 261 (1947). Fay was a 5-4 decision with Justice Jackson writing for the majority and with a dissent by Justice Murphy, who was joined by Justices Black, Douglas, and Rutledge. Id. (788.) N.Y. JUD. LAW [Section] 665 (McKinney 1955). As a child I remember my mother receiving a postcard that allowed her to avoid jury duty by checking off a box staking: "I am a woman." She always used her automatic exemption, as would most potential jurors if given the option. The breadth of New York's exemptions was highlighted by the question a lawyer asked me when I was a college student. "How would you like to be tried by a jury made up of those who couldn't get out of jury duty?" (789.) Fay, 322 U.S. at 270.

(790.) Id. at 289.

(791.) Id. at 289-90.

(792.) Id. Justice Jackson wrote:

It would, in the light of this history, take something more than a judicial interpretation to spell out of the Constitution a command to set aside verdicts rendered by juries unleavened by Feminine influence. The contention that women should be on the jury is not based on the Constitution, it is based on a changing view of the rights and responsibilities of women in our public life, which has progressed in all phases of life, including jury duty, but has achieved constitutional compulsion on the states only in the grant of the franchise by the Nineteenth Amendment.

Id. at 289-90 (emphasis added).

(793.) Id. at 296.

(794.) N.Y. JUD. LAW [Section] 510 (McKinney 1977).

(795.) Jan Hoffman, Making the New York State Jury System Make Sense, N.Y. TIMES, Apr. 7, 1994, at B 1; Jan Hoffman, New York Casts for Solutions to Gaping Holes in Juror Net, N.Y. TIMES, Sept. 26, 1993, at A1; see Jan Hoffman,New York's Top Judge Plans An Overhaul of Juror System, N.Y. TIMES, Oct. 25, 1994, at A1; Justice for Jurors, N.Y. TIMES, Apr. 16, 1994, at A20 (editorial); Kevin Sack, Pataki Signs Changes on Juries into Law, N.Y. TIMES, June 29, 1995, at B4. (796.) 368 U.S. 57 (1961).

(797.) Id. at 64.

(798.) Id.

(799.) Id.

(800.) Id. at 59.

(801.) Id. at 58. The Pennsylvania Supreme Court recently held that a baseball bat is not an instrument of crime, lending support to the view that Gwendolyn Hoyt's act was spontaneous. Commonwealth v. Ly Ngow, 652 A.2d 305, 306 (Pa. 1995). (802.) Hoyt v. State, 119 So. 2d 691, 692-93 (Fla. 1959).

(803.) Id. at 696 (Hobson, J., dissenting).

(804.) Id. at 697.

(805.) Id. at 696-97.

(806.) Id. at 697.

(807.) Id.

(808.) Id.

(809.) Id.

(810.) Id.

(811.) Id.

(812.) Id.

(813.) Id.

(814.) Id. at 696.

(815.) Id. at 697-98.

(816.) Hoyt, 368 U.S. at 59.

(817.) Hoyt, 119 So. 2d at 700 (Hobson, J., dissenting from dental of petition for rehearing). (818.) Hoyt, 368 U.S. at 60.

(819.) Id.

(820.) Id. at 59.

(821.) Id. at 62.

(822.) Id. at 69 (Warren, C.J., concurring).

(823.) 419 U.S. 522 (1975).

(824.) Id. at 535-37.

(825.) Id. at 523 n.2 (citing LA. Code Crim. Proc. Ann. art. 402 (West 1975)).

(826.) Id. at 524.

(827.) Id at 525.

(828.) 391 U.S. 145 (1968). Duncan held that trial by jury in criminal cases was a fundamental right essential "to prevent oppression by the government," and safeguard defendant from the "corrupt or overzealous prosecutor and [from] the compliant, biased, or eccentric judge." Id at 155-56.

(829.) Taylor, 419 U.S. at 528.

(830.) Id The Court relied on Apodaca v. Oregon, 401 U.S. 404 (1972), for the proposition that " `a jury will come to such a [commonsense] judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate . . . on the question of a defendant's guilt.'" Id (quoting Apodaca, 401 U.S. at 410-11 (plurality opinion)). (831.) Id at 529 (citing 28 U.S.C. [subsections] 1861, 1863,1864 (1968)). (832.) Id at 529 n.7 (citing H.R. Rep. No. 1076, 90th Cong., 2d Sess., 8 (1968)). (833.) Id at 530.

(834.) Id ("Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial."). (835.) Id at 531. The Court cited Ballard's repudiation of the argument that an all male panel could be as representative as if women were included. Id at 531-32 (citing Ballard, 329 U.S. at 193). (836.) Id. at 534.

(837.) Id. at 533-34.

(838.) Id. at 534.

(839.) Id. at 534 n. 15 (citing Hoyt, 368 U.S. at 62).

(840.) Id. at 535 n.17.

(841.) Id. at 534. The Court acknowledged that the First Congress did not perceive that the Sixth Amendment required women on jury panels, but it noted a change since the 1957 Congress legislated that all citizens were competent to sit on federal juries. Id at 536. (842.) Id at 537.

(843.) West, supra note 11, at 179.

(844.) Taylor, 419 U.S. at 538 (Rehnquist, J., dissenting).

(845.) Id. at 541.

(846.) Id at 539.

(847.) 476 U.S. 79 (1986).

(848.) 114 S. Ct. 1419 (1994).

(849.) Batson, 476 U.S. at 83.

(850.) Id at 84.

(851.) See Georgia v. McCollum, 112 S.Ct 2348, 2353-54 (1992) (extending Batson to prohibit race-based peremptory challenges by a criminal defendant); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 627-28, (1991) (extending Batson to prohibit race-based peremptories in civil litigation); Powers v. Ohio, 499 U.S. 400, 409 (1991) (extending Batson to criminal defendant of a different race than the excluded juror). (852.) Batson, 476 U.S. at 85-86.

(853.) Id. at 86 (quoting Strauder, 100 U.S. at 308).

(854.) Id. at 87 (quoting Thiel v. Southern Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)). (855.) Id.

(856.) Id. at 112 (Rehnquist, J., and Burger, J., dissenting) (stating majority's holding violates stare decisis and is based on Equal Protection argument which petitioners expressly declined to raise). (857.) Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 Colum. L. Rev. 725 (1992); Beyond Batson, supra note 281; Donna Hess, Note, Gender Based Peremptory Challenges: A Bad Remnant of the Historical Discrimination Against Women?, 28 Suffolk U. L. Rev. 63 (1994).

(858.) J.E.B., 114 S. Ct. at 1422. (859.) See generally David H. Gans, Stereotyping and Difference: Planned Parenthood v. Casey and the Future of Sex Discrimination Law, 104 Yale L.J. 1875, 1887, 1897 (1995) (arguing that Supreme Court's equal protection analysis has prohibited stereotyping where there are similarities between men and women, but has not dealt adequately with stereotyping where there are sex differences between men and women).

(860.) See Phoebe A. Haddon, Rethinking the Jury, 3 WM & Mary Bill Rts. J. 29, 104 (1994).

The value of meaningful juror deliberation is at the heart of the representative model. The creative

opportunity lies in the ability of social and political equals with divergent views to construct truth through

the give and take of the deliberative process. Theoretically, the process of deliberation is a process

through which biases of individual jurors are exposed and isolated or controlled.

A representative model favors the greatest amount of diversity to meet the goals of this process. The

argument is that notwithstanding the identity of the litigants, society--and other jurors--can be

deprived of the influence of jurors who reflect a particular perspective or world-view and who are absent

from deliberation. A litigant who does have a similar social identity is deprived of the influence and

knowledge of that missing segment which can most empathize with and understand her during the

deliberative process. Id.

(861.) Rosabeth Kanter, Some Effects of Proportions on Croup Life: Skewed Sex Ratios and Responses to Token Women, 82AM. J. Soc. 965, 971-972 (1977) [hereinafter Kanter, Skewed Sex Ratios]; See Rosabeth Kanter, Men and Women of the Corporation (1977) (illustrating structuralist view on dynamics of segregation and tokenism as they at-feet women in corporations). Professor Martha Chamallas has critiqued Rosabeth Kanter's structural approach. Martha Chamallas, Structuralist and Cultural Domination Theories Meet Title VII: Some Contemporary Influences, 92 Mich. L. Rev. 2370, 2378-85 (1994).

(862.) Kanter, Skewed Sex Ratios, supra note 861, at 979.

(863.) Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the United States 1994, at 18 (114th ed. 1994) [hereinafter Statistical Abstract]. Hispanics are underrepresented in the legal profession. Mary Hernandez, Seeking a Wider Role: Underrepresented in High-Level Law Positions, Hispanics Struggle for Access, A.B.A. J., June 1995, at 8.

(864.) Statistical Abstract, supra note 863, at 407.

(865.) Id. at 281.

(866.) Id.

(867.) See supra notes 614-20 and accompanying text (discussing reports).

(868.) Statistical Abstract, supra note 863, at 45.

(869.) Reynolds v. Sims, 377 U.S. 533, 586-87 (1964).

(870.) See Amar, supra note 277, at 1187-89 (explaining that juries are democratizing force within judicial branch). See generally, Joanna L. Grossman, Note, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stan. L. Rev. 1115, 1117-21 (1924) (noting that juries act as forum for civic participation in addition to factfinding role).

(871.) The case is generally referred to as the "Rodney King case, " even though Rodney King was the victim of a brutal beating by Los Angeles police officers. The beating was captured on videotape. Schepple, Imagining the Real, supra note 16, at 1019-20 & nn. 50-52.

(872.) See generally Nancy J. King, The Effects of Race-Conscious Jury Selection on Public Confidence in the Fairness of Jury Proceedings: An Empirical Puzzle, 31 AM. Crim. L. REV. 1177, 1184 (1994) (stating that many Americans attributed acquittals in Rodney King case to lack of minority representation on jury). (873.) See Frank Turkheimer, The Rodney King Verdict: Why and Where to from Here, 1992 Wis. L. REV. 849, 850 (observing that "it is almost impossible to say that racism did not play a part in the King verdict"). (874.) J.E.B., 114 S. Ct. at 1422-25.

(875.) Id at 1430.

(876.) Id at 1424-25.

(877.) Id at 1422. In 1911, Washington became the first state to allow women to serve. Fay, 332 U.S. at 289. Mixed juries existed during the 1870 term of the Wyoming Supreme Court but disappeared when a new Chief Justice was appointed. Grossman, supra note 870, at 1133-35.

(878.) J.E.B., 114 S. Ct. at 1422-23 ("So well-entrenched was this exclusion of women that in 1880 this Court, while finding that the exclusion of African American men from juries violated the Fourteenth Amendment, expressed no doubt that a State `may confine the selection [of jurors] to males.'") (quoting Strauder, 100 U.S. at 310)). (879.) Id. at 1423.

(880.) Id.

(881.) Justice Blackmun wrote:

We need not determine, however, whether women or racial minorities have suffered more at the hands of

discriminatory state actors during the decades of our Nation's history. It is necessary only to

acknowledge that "our Nation has had a long and unfortunate history of sex discrimination . . .," a history

which warrants the heightened scrutiny we afford all gender based classifications today. 114 S. Ct. at 1425 (quoting Frontiero v. Richardson, 411 U.S. 677,684 (1973)). (882.) Id.

[T]hroughout much of the 19th century the position of women in our society was, in many respects,

comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold

office, serve on juries, or bring suit in their own names, and married women traditionally were denied the

legal capacity to hold or convey property or to serve as legal guardians of their own children .... And

although blacks were guaranteed the right to vote in 1870, women were denied even that right--which is

itself `preservative of other basic civil and political rights'--until adoption of the Nineteenth Amendment

half a century later. Id. (quoting Frontiero, 411 U.S. at 685).

(883.) Id. Justice Blackmun cited Justice Ginsburg's concurring opinion in Harris v. Forklift Systems, 114 S. Ct. 367, 373 (1993), in which she stated that "it is am open question whether classifications based on gender are `inherently suspect.'" Id. at 1425 n.6.

(884.) Id. at 1430. In addition, Blackmun noted that "[t]he temptation to use gender as a pretext for racial discrimination may explain why the majority of lower court decisions extending Batson to gender involve the use of peremptory challenges to remove minority women." Id. at 1430 n. 18; see also Jill Schachner Chanen, Reaching Out to Women of Color: Special Report Chronicles Concerns Over Bias in the Profession, A.B.A. J., May, 1995, at 105. (885.) J.E.B., 114 S. Ct. at 1430. (886.) Id. at 1421. Justice Blackmun also restated the question in strict scrutiny language:

We granted certiorari . . . to resolve a question that has created a conflict of authority--whether the Equal

Protection Clause forbids peremptory challenges on the basis of gender as well as on the basis of race.

Today we reaffirm what, by now, should be axiomatic: Intentional discrimination on the basis of gender

by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination

serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities

of men and women. Id. at 1422.

Justice Blackmun specifically equated gender and race when he rejected the assumption "that gross generalizations that would be deemed impermissible if made on the basis of race are somehow permissible when made on the basis of gender." Id. at 1427. (887.) Id. at 1424 n.5.

(888.) Id. at 1424.

(889.) Id. at 1421.

(890.) Id.

(891.) Id. at 1426.

[R]espondent maintains that its decision to strike virtually all the males from the jury in this case "may

reasonably have been based upon the perception, supported by history, that men otherwise totally

qualified to serve upon a jury might be more sympathetic and receptive to the arguments of a man

alleged in a paternity action to be the father of an out-of-wedlock child, while women equally qualified to

serve upon a jury might be more sympathetic and receptive to the arguments of the complaining witness

who bore the child." Id. (quoting Brief for Respondent, at 10).

(892.) Id. at 1427 n. 11.

(893.) Id. at 1426. "When state actors exercise peremptory challenges in reliance on gender stereotypes, they ratify and reinforce prejudicial views of the relative abilities of men and women." Id. at 1427. "The Equal Protection Clause . . . acknowledges that a shred of truth may be contained in some stereotypes, but requires that state actors look beyond the surface before making judgments about people that are likely to stigmatize as well as perpetuate historical patterns of discrimination." Id. at 1427 n. 11.

Justice Blackmun used Strauder on behalf of women when he said: "Striking individual jurors on the assumption that they hold particular views simply because their gender is 'practically a brand upon them affixed by law, an assertion of their inferiority.'" Id. at 1428 (quoting Strauder, 100 U.S. at 308). (894.) Id. at 1426-27 & n.9.

(895.) Id. at 1424 (quoting Ballard, 329 U.S. at 194).

(896.) Id. at 1430.

(897.) Id. at 1427 ("The litigants are harmed by the risk that the prejudice which motivated the discriminatory selection of the jury will infect the entire proceedings."). (898.) Id. at 1428. Peremptory challenges used to exclude on the basis of group membership "denigrates the dignity of the excluded juror, and, for a woman, reinvokes a history of exclusion from political participation. " Id.

(899.) Id. at 1427.

(900.) Id. at 1430.

(901.) Id.

(902.) Id. at 1427.

(903.) Id. (quoting Powers v. Ohio, 499 U.S. 400, 413 (1991)).

(904.) Id.

(905.) Id. at 1426 n.9.

(906.) Id. at 1429.

(907.) Id.

(908.) Recent articles have advocated major changes in the system of peremptory challenges. See generally Albert Alschuler, Racial Quotas and the Jury, 44 Duke L.J. 704 (1995) (advocating use of racial quotas in jury selection); Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. David L. Rev. 1169 (1995) (advocating jury reform by requiring compulsory service and eliminating peremptory challenges); Felice Banker, Eliminating a Safe Haven for Discrimination: Why New York Must Ban Peremptory Challenges From Jury Selection, 3 J.L. & Pol'y 605 (1995) (advocating eliminating peremptory challenges); Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Role of the Jury 73 Tex. L. Rev. 1041 (1995) (advocating eliminating peremptory challenges); Charles J. Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenge, 31 Am. Crim. L. Rev. 1099, 1131-35 (1994) (advocating new restrictions on the use of peremptory challenges). See also Nancy King, supra note 872, at 1187-88 (noting effects of race-conscious jury selection on public confidence). (909.) J.E.B., 114 S. Ct. at 1429.

(910.) Id. at 1429 n.16.

(911.) See supra notes 352-56 and accompanying text (discussing O'Neal's proposals). (912.) J.E.B., 114 S. Ct. at 1428 n.15 (quoting Justice Scalia's dissent, id at 1437). (913.) Id.

(914.) Justice Kennedy proclaimed: "We do not prohibit racial and gender bias in jury selection only to encourage it in jury deliberations. Once seated, a juror should not give free reign to some racial or gender bias of his or her own." Id. at 1434 (Kennedy, J., concurring). (915.) Id.

[A] juror sits not as a representative of a racial or sexual group but as an individual citizen.

Nothing would be more pernicious to the jury system than for society to presume that

persons of different backgrounds go to the jury room to voice prejudice .... The jury pool

must be representative of the community, but that is a structural mechanism for

preventing bias, not enfranchising it." Id.

(916.) Id. at 1432 (O'Connor, J., concurring).

(917.) Id. at 1431.

(918.) Id.

(919.) See supra notes 651-64, 657-62 and accompanying text (discussing jury studies on verdicts involving abused women).

(920.) J.E.B., 114 S. Ct. at 1433 (O'Connor, J., concurring).

(921.) Id. at 1434 (Rehnquist, C.J., dissenting).

(922.) Id. at 1437 (Scalia, J., dissenting, joined by Rehnquist, C.J., and Thomas, J.). (923.) Id. at 1435 (Rehnquist, C.J., dissenting).

(924.) 115 S. Ct. 1769 (1995).

(925.) Id. at 1770.

(926.) Id. at 1771. "The second step of this process does not [require] an explanation that is persuasive or even plausible." Id.

(927.) Id.

(928.) Id.

(929.) Id.

(930.) Donna St. George, Women's Groups Hoping to Seal a 75-Year-Old Victory, Phila. Inquirer, Aug. 13, 1995, at E3. (931.) Michael Carpini & Ester Tucks, The Road to Power, Barnard 8,9 (Spring 1993).

The greatest disparity between men and women existed at the two ends of the educational achievement scale.

Forty-nine percent of female college grads voted for Clinton as compared to 40 percent of males with the same

level of education. Among those without a high school diploma, 58 percent of women and 49 percent of men

supported him. Id.

(932.) Susan Carroll, The Politics of Difference: Women Public Officials as Agents of Change, 5 Stan. L & Pol'y Rev. 11, 11-12 (1994).

(933.) Id. at 13 n. 11 (citing Debra Dodson & Susan Carrroll, Reshaping the Agenda: Women in State Legislatures 58 (1991)).

[C] Marina Angel, 1995 Professor of Law, Temple University School of Law, B.A., Barnard Colleges, 1965; J.D., Columbia University School of Law, 1969; LL.M., University of Pennsylavania School of Law, 1977. I would like to thank my colleagues at Temple Law School who read and commented on earlier drafts of this article: JoAnne Epps, Rick Greenstein, Sharon Harzenski, Michael Libonati, Laura Little, Lou Natali, and Mark Rahdert; my colleagues at the Faculties of Law and Criminal Justice of Queensland University of Technology, David Gardiner, Gayre Christies, and Geoff Dean, and at the FAculty of Law of the University of Wollongong, John Goldring, David Farrier and Patricia Blazey-Ayoub, who allowed me to test my ideas on them; my Temple Law School research assistants, Christine Myers, 1996, who provided invaluable help with research and organization, Douglas Thoren, 1993, and his wife, Dr. Valerie King, who guided me through the vast sociological literature, Jonathan Weiss, 1995, Pam Price, 1995, Jo Bennett, 1996, Paul Chung, 1996, and Brett Wiggins, 1997; the staff of the Temple Law Library, particularly John and Larry Reilly; and the editors and staff of the American Criminal Law Review at the

Source Citation

Source Citation   

Gale Document Number: GALE|A18417125