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Abstract:
This Commentary focuses on one form of "non-confrontational homicide" - when a victim of abuse kills her abuser while he is asleep or otherwise in a passive condition. Should such a killing be treated as justifiable, excusable, or punishable?

The thesis of this paper is that the proposition that such a homicide is morally justifiable and that the traditional law of self-defense should be expanded to incorporate such cases is wrong-headed. Moreover, defense use of battered woman syndrome evidence obscures the real basis of any self-defense claim and tends to pathologize, rather than justify, the battered woman. Instead of expanding self-defense law to justify such killings, and rather than return to the old strategy of fitting such killings under the excuse umbrella or insanity or diminished capacity, criminal defense lawyers and legislative reformers should seek to defend non-confrontational battered-woman homicides on the excuse basis of duress as defined by the Model Penal Code.

duress, justification

Abstract:
American accomplice law is a disgrace. It treats the accomplice in terms of guilt and, potentially, punishment, as if she were the perpetrator, even when her culpability is often less than that of the perpetrator and/or her involvement in the crime is tangential.

The subject of accomplice liability has received little scholarly attention in the United States except, coincidentally, for a flurry of intellectual activity in the mid-1980s. One of these articles, my own, proposed reform of complicity law in the form of what may be characterized as the "causation approach." The thesis of that article was that the criminal law fails to adequately distinguish between accomplices who are critical parties in a crime and those whose involvement is trivial. To alleviate this problem, the article recommended a statutory distinction between "causal" and "non-causal" accomplices: causal accomplices (persons but for whose assistance the offense would not have occurred) could continue to be convicted of the offense committed by the principal; non-causal accomplices would be convicted of a lesser offense and punished accordingly.

In this article I consider Professor Kadish's approach to complicity, which sees no place for causation in the analysis, and other criticisms directed at the causation approach. I argue here that, notwithstanding the criticisms, the causation approach to accomplice liability is conceptually justifiable and would still make for good legislative reform. However, the causation approach, although preferable to current law, does not go far enough to distinguish between parties and does not express community sentiment as well as it could. Therefore, I now suggest variations on the causation approach, which would also result in a more just system than the present one.

model penal code, culpability, sentencing

Abstract:
This piece, prepared in conjunction with the author's participation as the 68th Cleveland-Marshall Fund Visiting Scholar at Cleveland-Marshall College of Law, reflects on many salutary reforms of rape law in the past decade, but also expresses concern that the alliance between (or, at least, parallel efforts of) political conservatives and some feminists to bring about further rape law changes may result in the law following some regrettable paths. The author recommends further reform in certain areas (e.g., fraudulently induced sexual relations), but is concerned with changes that may be underway in the definition of forcible rape, and in the decreased role of mens rea in acquaintance rape prosecutions in some jurisdictions.