Download this Paper Open PDF in Browser

Consistently Revealing the Inconsistencies: The Construction of Fear in the Criminal Law

24 Pages Posted: 3 May 2011  

Camille A Nelson

American University - Washington College of Law

Date Written: August 1, 2004


This article focuses on the objective reasonable person standard in criminal law through the context of self defense and rape and their problematic construction. This article seeks to illustrate to law students the inconsistency of the aimed objective construction of the reasonable person standard because of its inherently subjective application. By examining People v. Goetz and State v. Alston, this article seeks to explore how societal norms reveal the undercurrent of negative associations of both gender and racial identity that lead to a subjective application of the reasonable person standard.

In Goetz, the defendant was able to successfully draw on generalized racial anxieties and stereotypes of black men. Goetz was sitting near a group of teenaged African American males in a New York subway car. He was approached by one of the teenaged boys. The teenager said to Goetz, “give me five dollars.” None of the teenaged boys displayed a weapon. Goetz pulled a revolver and shot the four teenage boys five times. Bernhard Goetz successfully claimed that his shooting of the four Black youths on the New York subway was justified as an act of self-defense. The normative currency of racialized self-defense claims is revealed by this case. By deploying racialized imagery and playing on societal fears of Black men and youth, Goetz’s attorney consistently constructed the black youths as racialized “others” who were deserving of the vigilante justice meted out to them.

In the Alston case, the victim, Cottie Brown, had a prior sexual relationship with the assailant, Edward Alston. Prior to the incident, Alston warned Brown that if she did not follow him to a friend’s house and have sex with him that he would “fix her face.” The court found that the prior history of domestic abuse perpetrated by Alston and his verbal threat were too remote from the actual incident to justify a conviction of rape. Unlike Goetz, Brown was forced to overcome racialized stereotypes rather than being able to play into them. Rape cases often force the victims to explain their own conduct, and the victims are often confronted with societal perceptions regarding proper sexual modesty or what constitutes appropriate resistance to a sexual assault.

This article uses these two cases as a spring board to examine how feminist legal theory and post-modern race theory and constructions of gender and race have permeated legal thought on multiple levels. This essay explores the unconscious subjective perspective of the finder of fact and how unconscious stereotypes have led to inconsistent and subjective applications of supposedly neutral criminal law principles.

Suggested Citation

Nelson, Camille A, Consistently Revealing the Inconsistencies: The Construction of Fear in the Criminal Law (August 1, 2004). St. Louis University Law Journal, Vol. 48, p. 1261, 2004; Suffolk University Law School Research Paper. Available at SSRN:

Camille A Nelson (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States


Paper statistics

Abstract Views