Group Status and Criminal Defenses: Logical Relationship or Marriage of Convenience?

Abstract

Group status has become increasingly significant with respect to criminal defenses. With varying degrees of success, academics, judges, and commentators have argued that group status can serve as an appropriate basis for defending against a charge or for avoiding or reducing punishment. Three of the most important and pervasive defensive theories based on group status are Battered Women Syndrome, Social Background Defense, and Cultural Back-ground Defense. Given their potential breadth and scope, these recently-asserted defenses must be examined in light of traditional understandings not only of justification and excuse but also of extenuation and mitigation. Based on such an examination, this article concludes that group status should rarely be relevant with respect to justification; however, it should sometimes be relevant with respect to certain types of excuse. Further, group status should almost always be relevant with respect to extenuation and mitigation based on partial or imperfect justification and excuse.