Question
Prison sentences for women who kill their abusive partners are more severe than the prison sentences for men who commit the same offense.
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The literature review on my theory should review domestic violence and include issues such as: throughout history, women have been considered the property of men, how the Civil Rights Movement and the battered women’s movement have changed some laws to address domestic violence and how the courts used to consider DV a marital problem, etc.?
The literature review about my research topic should cover issues found when compiling the annotated bibliography and also include past research that supports my hypothesis/question, limitations of past research, similar research that was important in some way, etc.
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Prison Sentences for Women Who Kill Their Abusive Partners Are More Severe Than the Prison Sentences For Men Who Commit the Same Offense
Throughout history, laws, and traditions have given husbands authority and physical control over their wives. Napoleon declared that women must be kept legal minors their entire lives. Sir Edward Coke, an English statesman and legal expert in the early 1600s, coined the popular phrase, “a man’s home is his castle.” Under British common law, men were allowed to beat their wives, although the size of the stick was limited to a “rod not thicker than his thumb”, also known as the “Rule of Thumb” (Dobash & Dobash, 1977). According to the British doctrine of “coverture”, a husband and wife were considered a single person under the eyes of the law and that person was the husband. British common law stated that if a man killed his wife he was charged with homicide but if a woman killed her husband it was considered an act of treason and the punishment was being burned at the stake (Jones, 1994).
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When America was colonized, British common law was adopted and supported the tradition that men had power and physical control over their wives. It was not until the late nineteenth century that states declared husbands did not have the right to physically abuse their wives. However, they did not authorize any criminal penalties when the abuse occurred. In 1871, an Alabama court repealed the right men had to beat their wives and in 1874 a North Carolina court did the same but limited its effect by stating:
“If no permanent injury has been inflicted, nor malice, cruelty, nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”
The U.S. Commission on Civil Rights was created by the Civil Rights Act of 1957. However, it did not protect women from her abuser from a prior or existing relationship because many court systems felt that domestic abuse was a marriage problem. It was not until the end of World War I that many states in the U.S. prohibited wife-beating. However, it took the Battered Women’s Movement in the early 1970s to lead to changes in the criminal justice response to domestic violence. Stout and Brown assert that the prison sentence for women who killed was more severe that the prison sentence that the men received. Stout and Brown assert that half of the women received sentences of life without parole however none of the men did. The women who were tried before juries received modal sentences of life without parole. On the other hand, the men who were tried by juries received modal sentences of 14-25 years. Stout and Brown reported that only 6% of the women who received life without parole were defended by a public defender. On the other hand, 33% received life without parole when represented by a private attorney. The authors observe that the findings cannot be generalized because of their one-state research and the small number of subjects. Stout and Brown believe that despite this, their data provides preliminary evidence of social and legal differences between men and women who kill intimate partners.
Literature related to the research question
The authors support research that although men commit more murders and are the victims of more homicides, women are more often killed by their partners. Stout and Brown used a cross-sectional study design with face-to-face interviews that consisted of 23 men and 18 women. All of them had been convicted of intimate partner homicide in Missouri. The questions the interviewers used were questions about the offenders’ basic demographic information, family and childhood backgrounds, intimate relationship violence, the circumstances of the homicide and the offenders’ legal status. They also used secondary data obtained from the Missouri Department of Corrections. Their research discovered that women were more likely to be hurt and seek medical advice. The women also had a higher level of fear before they killed their batterers. Stout and Brown state that research shows that women kill in self-defense. Some battered women end the violence killing their batterers (Browne 1987). Many of these battered women make repeated but failed attempts to enlist the help of the justice system. Although the system fails to protect them, it does not fail to prosecute them even when they have no record of violent or criminal behavior (Browne, 1987).
Auerhahn (2007) indicates that there are significant differences in the way both intimate partner (IP) and non-intimate homicides are convicted and sentenced. Auerhahn’s indicated that men IP homicide convicts are treated more harshly than women convicts. In this study, 1137 convict-participants were involved. However, this research was a small one and it is only after the gender aspect was considered that men emerged as the receivers of harsher treatment than women throughout the justice-seeking process. The main limitation of this study is that it focuses on only convicted IP offenders.
Case histories, according to Browne (1987), are a manifestation of a situation whereby abusive relationships develop into assault and threats that eventually lead to death. These experiences reveal how romantic idealism can sustain the earliest stages of abusive relationships. Eventually, this escalation leads to battering and cause of harm to a loved one.
Browne (1987) explores the various ways in which battered women tend to adapt to the behaviors of their tormentors for purposes of survival. Browne compared abused women who did not choose lethal action with those who resorted to violence against their mates. The research revealed that the differences between the actions of women in both groups lie in the men. Those men who were killed had surpassed all the limits of acceptable aggression through the escalation of violence or had turned their threats against the children. Browne (1987) also dedicates a chapter on the harshness of the legal treatment meted against abused women who choose to kill their husbands.
Follingstad (1989) carried out a study on factors influencing verdicts in various legal cases involving abused women who kill their intimate partners. The participants, (338 college students) based their questionnaire answers to a fictitious legal case which was typical of a real-life situation. A half of the respondents received the instruction of the judges with regard to NGRSD (not guilty by reason of self-defense). The other half listened to instructions on NGRI (Not Guilty by Reason of Insanity). The subjects had to decide on a verdict and then list down the reasons for their verdicts on a questionnaire. This means they had to include factors such as demographics and relevant attitudinal measures. Cases with NGRSD were more likely to lead to not-guilty verdicts. Other factors influencing the cases’ outcomes include the testimony of the expert witness, the subject’s feelings about the woman’s use of a weapon, the subject’s race, attitude towards domestic abuse and subjects’ own experiences of abusive relationships.
Gagné (1996) draws on the critique of liberal democracy in order to examine the impact of activism by feminists belonging to the Ohio Battered Women’s Movement. The movement successfully rallied for the granting of the clemency of 26 women who had been incarcerated for assaulting or killing abusive partners. Gagne’s (1996) criticism is based on feminist, critical and postmodern critiques of various theories of liberal democracy. In doing this, the definition of activism is expanded in order to identify and recognize the strategies that feminists of the movement used.
The women who belonged to the Ohio Battered Women’s Movement used their personal relationships and careers in order to establish groups. These groups raised consciousness in prison. The newly created democratic spaces that they had established facilitated the creation of a social movement community within the confines of the women’s prison. The rise in the level of awareness and consciousness also facilitated access of battered women to the public and the authorities. Feminists can create an opportunity structure that constitutes a viable strategy for use in driving ahead of the agenda of social movements in hostile cultural and political settings (Gagné, 1996).
The feminist movement in Ohio has been credited with the creation of public awareness of domestic wife abuse as a nagging social problem. The movement has also been vocal in the establishment of safe havens for many victims of intimate violence in addition to working towards the elimination of gender bias in the law. Resource mobilization theory is one of the approaches that Gagne (1996) critiques in her attempt to extend the bounds of liberal democracy and its permissiveness to gender fairness before the law.
Feminists have tended to challenge the tenet that institutionalized politics can be separated from activism or personal life (Acklesberg, 1988; Alonso, 1992, cited in Gagne, 1996). Similarly, critical, post-modern, and new social movement theorists have persistently argued that in post-industrial societies, political and non-political spheres of life have been merged (Acklesberg, 1988; Alonso, 1992 cited in Gagne, 1996). According to Gagne (1996) and Stout (1991), this is the main reason why an examination of the movement tends to overlook the activism that takes place outside non-traditional arenas. Such non-traditional arenas include the workplace, personal relationships and institutional politics. The Ohio battered women’s movement traces its origin to the larger women’s movement, whose early activist activities were concentrated within Columbus and Cleveland. The Cleveland movement had started in 1974, whereby women from different organizations united to form Women Together, an organization for tackling abuses against women.
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Gagne (1996) uses the concepts of collective action frames and master action frames in order to explain the context within which the feminist movement in support of the battered women’s course emerged. Collective action frames are dynamic efforts made by members of a movement to “package” an issue in such a way that a sense of injustice is created through attribution of the blame for a certain agent or social group. It can be likened to theories that fall within a certain paradigm. The formation of the Ohio Battered Women’s Movement was a culmination of feminist protests during the 1950s and 1960s. These protests constituted the master action frames within which special interest groups emerged.
In order to bring about social change, alternative visions of the world must be created by a movement. However, in order to increase their chances of people and resource mobilization with an aim of pursuing goals, activists have to develop a collective action frame that is in agreement with something with which the public already agrees (Gagne, 1996). In movements whereby no pragmatic repercussions for holding out exist, few consequences are achieved through the maintenance of ideological purity.
In Ohio, activists incorporated eco-feminism and cultural emphasis on spiritual growth and gender differences with their core aim of bringing about social and structural change. Thanks to the feminists working through the courts and in the legislature, the psychological responses to women who undergo escalating battering were recognized. The recognition was made through a definition of terms that were specific to the women’s dilemma.
Goodmark (2007) sets out to investigate the prevailing theories that justify criminal punishment in the U.S through the lens of Dixie Shanahan’s case. Dixie, an Iowa woman, was sentenced to 50 years imprisonment after he killed her abusive spouse who had battered her for 19 years. Goodmark concludes that only a retributivist rationale can justify Dixie’s punishment as well as that of other women who kill their husbands for battering them.
The concepts of mandatory minimum sentences and community fears about widespread cases of partner homicides have a strong influence on judicial decisions. Additionally, judicial unwillingness to consider the aspect of domestic violence also makes it difficult for battered women who kill to seek justice.
During the trial of Dixie’s trial, both the prosecution and the defense witnesses were in agreement that Scott, Dixie’s husband, was an extremely had an extremely violent personality and he had brutally abused Dixie for many years. Some of the community members thought that Dixie’s actions were a final desperate attempt to save her own life and that of her baby. Others maintained that although she had suffered untold suffering, Dixie did not have a right to take Scott’s life.
Members of the jury were dismayed by the sentence; they had assumed that Shanahan was going to be sentenced to 27 years, and would serve, at most, eight years (Goodmark, 2007). Philosophers who employ deterrence, rehabilitation, retribution and incapacitation theories tend to justify criminal punishment in America. However, a closer examination of Dixie’s case raises the critical question of whether all the rationale makes any sense in the context of cases involving a battered woman.
According to Goodmark (2007), the injustice in Dixie’s like all other cases whereby battered women are treated harshly before the law is a function of the concept of the mandatory minimum sentence. Even the judge admitted that he was frustrated by lack of sentencing options. Judge Smith told Dixie that he was unable to impose a lighter sentence. This was because the concept of mandatory minimum sentences in the law did not make such a provision.
To make matters worse, battered women also tend to face injustice even in jurisdictions that do not have such stringent sentencing requirements. In such cases, there is judicial skepticism about evidence of abuse. There is also skepticism about the fears of an epidemic of abuse-related homicides. In such cases, judges may refuse to hear evidence relating to the battered women’s ordeals. Alternatively, they may hear the evidence but refuse to determine the case in the context of the abuse. In either way, crucial information that would have led to the imposition of “just desert” is expressly excluded from sentencing decisions (Goodmark, 2007).
Kasian et al (1993) used mock jurors to assess acquittal rates in cases involving a battered woman who had been charged with killing her husband. The plea entered was automatism, self-defense, or a hypothetical plea of psychological self-defense. Expert testimony was varied with was varied along with the severity of the offense that the defendant had incurred. When a plea of automatism was entered, the defendant was found not to be guilty more often compared to the situation where a plea of self defense was entered.
In the study by Kisian et al, it was noted that expert witness testimony had a strong influence on verdicts during juror deliberations. The likelihood of acquittal increased dramatically under conditions whereby the abuse was severe as opposed to conditions where the abuse was moderate. Furthermore, entering a plea of psychological defense led to more acquittals compared to the self-defense plea. However, these acquittals were fewer than those given after an automatism plea.
Kisian et al (1993) conclude that further investigations are needed in order to assess the influence of beliefs and attitudes on verdict outcomes and the influence of judicial instructions. According to some investigators, the legal defense as a way of justifying homicide is narrow. When they are applied in the cases of women who kill, they become even narrower. Indeed, the actions of women who end up killing their tormentors do not seem to fall reasonably within these confines. This is the reason why they are always treated unfairly by a judicial process that generalizes the concept of self-defense to all al types of homicides.
Similarly, Huss et al (2006) also argue that battered women who kill their abusive husbands belong to a special category of defendants, who are being treated unfairly in the legal system. For Huss et al (2006), though, the emphasis is on a basic psychological method that can be used to identify the psychological factors that are critical in these judgments. Such a basic psychological approach would make it easy for commonsense notions of justice to be understood with regard to battered women who kill.
These commonsense notions are assessed against the conviction that women who kill are always at a tremendous disadvantage with regard to the self-defense doctrine. For instance, the law may delve into unreasonableness in circumstances that seem unreasonable in the context of the killing. However, it may also be argued by some commentators that any proposals to change the self-defense law in recognition of battered women are misguided.
Today, it is inevitable that social scientists are interested in the debate about self-defense and have tried to learn about different factors influencing judgments in these cases (Stout & Patricia 1995). For instance, one research trends seem to pursue the argument that the perceptions of jurors are responsible for the unfairness in the cases. Another line of argument is based on the notion that the woman is partially responsible for the abuse and could leave the marriage at will. However, the latter argument has pitied the social scientists against feminists (Huss et al, 2006). According to Huss et al (2006), there are no ethical concerns relating to the law as it is and the law as it should be with regard to the treatment of abused women who kill their abusers. It all boils down to the proper use of commonsense notions of justice. Additionally, no difference seems to exist between the use of student and non-student jurors in mock jury research.
In mock jury research, Plumm & Cheryl (2009) highlighted the trial of women was charged with murdering her batterer-husband. The women’s plea of not guilty by self-defense was put to test through various expert testimonies: Battered Women Syndrome, no expert testimony and Social Agency Framework. Ratings of guilt appeared to be closely tied to differences in expert testimony and gender. Empathy induction also had an influence on how the defendant was perceived.
In conclusion, battered women who kill their abusive husbands are unjustly treated by the law. The doctrine of self-defense does not apply to women’s circumstances; therefore, they find it difficult to satisfy its requirements. The judgments that these women receive are not reflective of the domestic setting in which the killing takes place.
Calls for the law to be amended often face obstacles from people who claim that this will lead to an epidemic of ‘domestic battering-related’ homicides. This problem is an example of an instance of social justice and it should be corrected within the bounds of the law. In the past, feminists have been attempting to use their careers and personal relationships in order to raise awareness of the need to change the law. The solutions to these problems can be attained everyone in society agreed that it is a social problem that needs to be addressed by all policymakers.
References
Auerhahn, K. (2007). Adjudication Outcomes in Intimate and Non-Intimate Homicides. Homicide Studies, 11 (3), 213-230.
Acklesberg, M. (1988) “Communities, resistance and women’s activism: Some implications for a democratic polity.” In Women and the Politics of Empowerment, eds. Ann Bookman and Sandra Morgen, 297-313. Philadelphia: Temple UniversityPress
Alonso, A. (1992) “Gender, power, and historical memory: Discourses of Serrano resistance.” In Feminists Theorize the Political, eds. Judith Butler and Joan W. Scott, 404-425. New York: Routledge
Browne, A. (1987). When Battered Women Kill. New York: Free Press.
Dobash, R. & Dobash, R. (1977). Love, honor and obey: Institutional ideologies and the struggle for battered women, Contemporary Crisis, 1(2) 13-48.
Follingstad, D., Darlene, S., Elizabeth, S., Lenne, H., Michael, W. & Zanthia, D. (1989). Factors Predicting Verdicts in Cases Where Battered Women Kill Their Husbands. Law and Human Behavior, 13 (3): 253-269.
Gagné, P. (1996). Identity, Strategy, and Feminist Politics: Clemency for Battered Women Who Kill. Social Problems. 43 (1), 77-93.
Goodmark, L. (2007). The Punishment of Dixie Shanahan: Is there Justice for Battered Women Who Kill? Kansas Law Review, 55 (2), 269-319.
Kasian, M., Nicholas, P., Cheryl, A. & Suzanne, P. (1993). Battered Women Who Kill: Jury Simulation and Legal Defenses. Law and Human Behavior. 17(3), 289-312.
Huss, M., Alan, J., Calvin, P., Garbin, R., & Allen, K. (2006). Battered Women Who Kill Their Abusers: An Examination of Commonsense Notions, Cognitions, and Judgments. Journal of Interpersonal Violence, 21 (8), 1063-1080.
Jones, A. (1994) Next Time She’ll Be Dead: Battering and How to Stop It.Boston: Beacon Press.
Plumm, K. & Cheryl, A. (2009). Battered Women Who Kill: The Impact of Expert Testimony and Empathy Induction in the Courtroom. Violence Against Women, 15 (2), 186-205.
Stout, K. (1991). Women, Who Kill: Offenders or Defenders? Affilia. 6 (4), 8-22.
Stout, K. &Brown, P. (1995). Legal and Social Differences between Men and Women, Who Kill Intimate Partners. Affilia 10 (2), 194-205.
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