'Murder and the Reasonable Man' Revisited: A Response to Victoria Nourse
7 Pages Posted: 2 Nov 2005
In this short essay, I respond to two questions raised by Victoria Nourse in her recent review of my book Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom (NYU Press 2003). Murder and the Reasonable Man examines ways in which race, gender, and sexual orientation norms can influence the reasonableness requirement in provocation and self-defense cases. Nourse asks: (1) In light of my critique of the Reasonable Man standard, why not simply eliminate the reasonableness requirement in the doctrines of provocation and self-defense?, and (2) Why not ask legislatures to carve out categories of things that cannot constitute legally adequate provocation, such as a female partner's infidelity and a non-violent homosexual advance? I respond to Nourse's first question by arguing that in spite of its problems, the reasonableness requirement in both provocation and self-defense law serves a useful function, ensuring that a completely irrational actor cannot get away with murder simply by claiming he was actually provoked into a heat of passion or honestly believed he needed to us deadly force to protect against an imminent threat of death or serious bodily injury. Requiring the jury to find that a reasonable person in the defendant's shoes would have also been provoked or would have also feared an imminent deadly attack provides an objective check on the defendant's subjective passions and fears. While this objective check may be influenced by the jury's personal biases, it is better than no check at all. In response to Nourse's second question, I argue that juries are better institutional actors than legislators when it comes to deciding what is fair and just in an individual case. Additionally, the deck is stacked against most criminal defendants before they even enter the courtroom, and I do not favor stacking the deck any further by taking away from the defendant the opportunity to argue a particular defense. The solution to the problem of race, gender and heterosexual orientation bias lies in making salient the race, gender, and/or sexual orientation norms that make certain defendants' claims of reasonableness seem more reasonable than others.
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