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The major currents driving legal theory have largely bypassed the field of criminal law. Neither the economists nor the advocates of critical legal studies ("crits") have had much to say about the theory of criminal responsibility or the proper mode of trying suspects. The economists have fallen flat in applying their rationalist models to the problems of punishing wrongdoers. The "crits" have had little to add-beyond Mark Kelman's one original and provocative article.

Of all the schools on the march in the law schools today, the feminists have had the most to say about the failings of the criminal law. The critique of rape law burst on the intellectual scene with Susan Brownmiller's best-selling book, Against Our Will: Men, Women, and Rape. Susan Estrich made her career by opening up the field of rape both to teaching and serious scholarship. More recently, the field of self-defense has come under scrutiny as a body of law that, like rape, traditionally discriminated against the rights of women. In this context, we have heard much about the battered woman syndrome and how it supposedly should apply to improve the position of desperate women who kill their partners under borderline circumstances, such as the case of the partner being asleep. These are situations that have always fallen beyond the conventional bounds of self-defense. With sympathy for battered women, however, commentators have taken a closer look at the traditional contours of self-defense in an effort to make the doctrine bend in their preferred direction.

This article addresses the debate about the proper structure of claims of self-defense and, in particular, whether special rules should apply on behalf of women who kill those who have persistently battered them in the past. In this context, the feminist arguments accrue to the benefit of (female?) criminal defendants. It is worth underscoring, however, that the feminist critique of criminal law does not always come out in favor of the accused. Witness the rape law reformers, who broke away from the Warren Court's pattern of consistently favoring the rights of the defendant. The interests of women in rape cases lie in enabling the state to convict more easily. Thus Susan Estrich and others have argued against the corroboration requirement to support the testimony of witnesses complaining of rape. Estrich also argued against the ruling in the William Kennedy Smith case that three other women who complained of sexual abuse by the defendant would not be able to testify against him.


Criminal Law | Law | Law and Gender