Nancy Cook, a Few Words About Women in the Discourse of Criminal Law Upon Reading Martha Grace Duncan's Essay, Beauty in the Dark of Night

Publication year2010


Nancy Cook*


One key idea in Martha Grace Duncan's essay, Beauty in the Dark of Night: The Pleasures of Form in Criminal Law, is that in our justice system, "criminal law represents the juncture where state and individual interact in the most dramatic way; the point at which the state goes furthest in exerting its authority over the citizen."1This intersecting place or moment "inextricabl[y] link[s] . . . authority and violence."2Professor Duncan follows this observation with another: the potent connectivity of authority and violence in the criminal law context offers a striking, almost eerie, contrast to the language that is often used by courts in analyzing, from a legal perspective, the thorny conflicts arising from state-citizen interactions related to crime and punishment. The harsh realities of crime, victimization, trial, and imprisonment-all laden with pain and violence-are discussed in opinions laced with antiquated poetic language, beautiful imagery, and soft sounds.3

Professor Duncan herself constructs similarly unlikely literary pairings in her writing about criminal law texts, interweaving the languages of story and witness into the academic discourse of a law journal essay.4

Part I of my response to Professor Duncan's essay will underscore a few points Professor Duncan makes about how the beauty of the language of criminal law is manifested in case law. To illustrate this concept, I rely on Professor Duncan's examples of cases involving depraved heart, heat of passion, attempt, and the castle doctrine are used to illustrate. I also explore one implicit question in Professor Duncan's essay: Why has this antiquated language been preserved? I offer three answers, drawing from examples provided by Professor Duncan's essay. In brief, Part I identifies the primary reasons suggested by Professor Duncan: an intentional evasion of precise definition, exploitation of the evocative power of language to promote a particular understanding, and renewal of precedent by making indirect associational links to familiar history.

Part II raises a different question: Why should it matter now, to practicing lawyers, that criminal law is steeped in outdated, quixotic language? To answer this question, I have chosen to look at a particular context generally alluded to, but not directly addressed in, Professor Duncan's essay. Specifically, my goal is to discover what implications the peculiar language of criminal law has for women who find themselves enmeshed in the criminal justice system, whether as defendants, convicted inmates, or crime victims.

Here, I focus on the "inextricable link to authority and violence"5present in the criminal justice system and on the contrast between the hardness of gory, grizzly details and the softness of imagery used to describe the crimes. Referencing the three previously noted methodologies (evasion of precise definition, exploitation of evocative power, and use of associational links to history), I discuss how the language of criminal law has special application to situations involving women in the system. Again, the concepts highlighted here are depraved heart murder, the heat of passion defense, attempt, and self- defense.

Finally, Part III attempts to demonstrate, through poetic form, just how pervasive and compelling the literary language of the criminal law is. Using excerpts from various texts, such as court opinions, news reports, academic texts (including Professor Duncan's essay), true-crime stories, personal narratives, confessions, and testimony, I present a documentary collage intended to break down artificial constructs of knowledge and provide evidence of the extent to which our assumptions about crime and women in the criminal justice system are subject to the power of language detailed in Professor Duncan's essay.


A. How the Antiquated Language of Criminal Law Is Preserved

In her essay, Professor Duncan examines the tendency of courts to preserve antiquated-and often romantically resonant-language in the criminal law context. This responsive essay focuses on particular manifestations of this tendency identified by Professor Duncan: language relating to murder, specifically references to depraved heart and heat of passion; terms used in discussions of attempt crimes, particularly those relating to time and place; and the lexicon of self-defense, with its connection to history and culture.

1. Depraved Heart

Professor Duncan takes us through several epistemological levels in her discussion of murder. She begins by demonstrating how criminal law uses the metaphors of body and heart to elucidate concepts of mens rea.6Courts have repeatedly described a perpetrator's state of mind as a state of heart: The guilty murderer suffers from "hardness of heart,"7a "depraved heart," an "abandoned and malignant heart,"8and a heart "fatally bent on mischief."9The evil heart is the source of the criminal's "wickedness."10

2. Heat of Passion

The heart is understood to be a source of heat, as well as of emotion, and from the heart metaphor comes the language of fire. As Professor Duncan notes, the case law is replete with such language, beginning with the primary idiom heat of passion, which serves as shorthand for a particular kind of loss of control and justifies the reduction of murder to manslaughter.11The fire metaphor embedded in the expression heat of passion has been extended to cover other aspects of murder defenses discussed in case law. Courts speak of the parties' emotions "cooling off" or "rekindling."12As Professor Duncan also points out, the event that is generally relied on to justify a heat of passion defense is one spouse's discovery of the other in flagrante delicto-literally, "in the blaze of transgression."13

As the heat of passion defense evolved, courts and legislatures sometimes broadened its reach beyond the adulterous spouse situation. In some jurisdictions, therefore, the operative term is "extreme emotional disturbance."14While this term lacks a direct connection to the fire metaphor, the defense retains the correlative language through a large body of jurisprudence. Cases that discuss extreme emotional disturbance15abound with terms like "simmering,"16"inflamed,"17"hot blood[ed],"18"smouldering,"19and "ignited."20

3. Locus Poenitentiae

When looking at the law of attempt, Professor Duncan highlights court opinions that emphasize notions of mercy and the potential for redemption.21

As she observes, courts have long voiced the belief that crime is constituted by both mens rea and actus reus; until the moment of action, the mind can be dissuaded from criminality.22In Latin-the Christian language of guilt and salvation-between temptation and sin lies locus poenitentiae, the place of repentance.23In recognition of this principle, Professor Duncan notes a Missouri case stating that "the law in its beneficence extends the hand of forgiveness."24

4. The Castle Doctrine

One final subject covered by Professor Duncan merits attention: the domain of self-defense. In her examination of the language of criminal law, Professor Duncan demonstrates the connectivity of the case law language to Anglo- American history and, in particular, to our feudal past.25Building from the precept that necessity is the "soul of . . . self defense,"26courts have devised the castle doctrine, implicitly concluding that one's home is inextricably linked to one's self. Defense of home is defense of self; retreat from one's home is no more expected than retreat from one's very self. "[W]hither shall he flee?" asked one court in 1884.27Although "retreat to the wall"28may be demanded in a public space, a "true man" is entitled to stand and fight when he (or his home) is threatened.29"Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home."30Home, moreover, is a private domain, the equivalent of a castle, where the owner is subject to no other.

B. Why the Antiquated Language of Criminal Law Is Preserved

Having clearly demonstrated that criminal law has preserved a language steeped in history, Professor Duncan explains some of the reasons why. She elaborates on three rationales that bear on matters discussed in Part II of this response. They are intentional evasion of precise definition, exploitation of the evocative power of language to promote a particular understanding, and renewal of precedent through indirect associational links to familiar history.

1. Intentional Evasion of Definition

Professor Duncan points out that a number of key elements in criminal law are not clearly defined. The words malice aforethought, for example, do not mean what they appear to mean.31Legal experts and courts acknowledge the ambiguity.32In fact, the concept has been described as "inscrutable on its face"33and "a term of art, if not a term of deception."34Similarly, the premeditation-deliberation formula, which distinguishes first- and second- degree intentional murder, has been criticized as a "mystifying cloud[] of words,"35"notoriously unhelpful,"36and a "'collection of colorful verbiage,' that 'tend[s] to carry more flavor than meaning.'"37The ambiguity is arguably deliberate and strategic.38It is also, arguably, reflective of the complexity of the subject matter.

Many in the field disdain criminal law's figurative language, with its inevitable ambiguity.39The American Law Institute (ALI), for example, clamors for more precision in a climate demanding public exactitude.40But Professor Duncan defends the aging language, applauding its breadth and expressiveness.41The language, she says, is self-transcendent, "vibrant with contradiction."42In contrast to what she denotes as the ALI's call for "steno- language,"43Professor Duncan advocates caution and reminds us of the benefits of flexibility in this difficult area of...

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