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

• Author: Angel, Marina

1. Introduction II. Stories

   1. The Story--"Fiction"

   2. The Story--"Fact"

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

   1. Jurisprudential Debates Affecting Women

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

      Early American Law

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

   4. The Supreme Court's Early Decisions

   5. The Vote Connected to Jury Service

      1. The Law Reviews

      2. The State Courts

4. Facts: The Reality of Woman Abuse

   1. Statistics & Patterns

   2. Newspaper Reports on Known and Unknown Women

   3. 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

5. Substantive Criminal Law

   1. Making Value Judgments

   2. The Reasonable Man and the Insane Woman

      1. The Common Law

      2. The Model Penal Code

         1. Extreme Mental or Emotional Disturbance

         2. Self-Defense

      3. Equal Application and Favorable Interpretations

   3. Facts: Male and Female

      1. Different Concepts of Time

      2. Different Definitions of Emotional Self Defense

      3. A Woman's World

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

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

   2. The Voluntary Exclusion Cases: Hoyt and Taylor

   3. The Peremptory Challenge Cases for African American Males

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

7. Conclusion

   I.INTRODUCTION

   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.

2. STORIES

   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...