Equality, Objectivity, and Neutrality

Authors

Alafair S. Burke, Hofstra University School of Law

Abstract

When is homicide reasonable? That familiar, yet unanswered question continues to intrigue both courts and criminal law scholars, in large part because any response must first address the question, "reasonable to whom?" The standard story about why that threshold question is both difficult and interesting usually involves a juxtaposition of "objective" and "subjective" standards for judging claims of reasonableness. On the one hand, the story goes, is a "subjective" standard of reasonableness under which jurors evaluate the reasonableness of a criminal defendant's beliefs and actions by comparing them to those of a hypothetical reasonable person sharing all of the individual defendant's character traits. This standard is commonly invoked to support the self-defense claims of women who have killed men who have severely and repeatedly abused them. The appropriate model for assessing reasonableness in such cases, the subjectivists argue, is not the reasonable man, or even reasonable person, but rather, the hypothetical "reasonable battered woman." In contrast, opponents of a qualified standard of reasonableness maintain that criminal law must return to its "objectivity." Otherwise, the argument goes, defendants invoking syndromes and "abuse excuses" - most notably the battered woman "poster child" - will literally get away with murder. In Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, Cynthia Lee adds a new dimension to this traditional dichotomy by suggesting that it is not battered women but, rather, members of the traditional "majority culture" - white, heterosexual men - who are most able to manipulate the concept of reasonableness by invoking dominant cultural norms. In a book directed as much to lay readers and courts as to a traditional academic audience, Lee weaves together a troubling and compelling array of case narratives to demonstrate how majority culture defendants are able to benefit from jurors' deeply ingrained biases.

Recommended Citation

Alafair S. Burke, Equality, Objectivity, and Neutrality, 103 Mich. L. Rev. 1043 (2005).
Available at: https://repository.law.umich.edu/mlr/vol103/iss6/1