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FEMINIST JURISPRUDENCE: Equal Rights or Neo-Paternalism?
by Michael Weiss and Cathy Young
Footnotes
[1] Glad Day Book Shops v. Deputy Minister of National Revenue for Customs and Excise, No. 619/90, 1992 Ont. C. J. Lexis 1296 (July 14, 1992).
[2] The Gazette (Montreal), April 14, 1993, p. A1.
[3] Susan Kastner, "The Sexual Future is in Contracts," Toronto Star, February 2, 1992, p. D1.
[4] Jim Reid, "New Sexual Assault Law Alarming for Men," Toronto Star, March 13, 1993, p. MS2.
[5] Nat Hentoff, "Pornography War Among Feminists," Washington Post, April 4, 1992, p. A23.
[6] Wendy McElroy, "The Roots of Individualist Feminism in 19th-Century America" in Freedom, Feminism, and the State, 2d ed., ed. Wendy McElroy (New York: Holmes and Meier 1991). For an excellent book-length discussion of liberal feminism, see Joan Kennedy Taylor, Reclaiming the Mainstream: Individualist Feminism Rediscovered (Buffalo, New York: Prometheus Books, 1992).
[7] Quoted in Jeff Rosen, "The Book of Ruth," New Republic, August 2, 1993, p. 19.
[8] Ibid.
[9] Jeanne L. Schroeder, "Feminism Historicized: Medieval Misogynist Stereotypes in Contemporary Feminist Jurisprudence," Iowa Law Review 75 (1990): 1135; Gerda Lerner, The Creation of Patriarchy (New York: Oxford University Press, 1987), pp. 9, 101-22, 239.
[10] Ann Scales, "The Emergence of a Feminist Jurisprudence: An Essay," Yale Law Journal 95 (1986): 1373; Liana Fiol Matta, "On Teaching Feminist Jurisprudence," Revista Juridica de la Universidad de Puerto Rico 57 (1988): 253.
[11] See, for example, Bruce Ackerman, We the People (Cambridge: The Belknap Press of Harvard University Press, 1991) p. 153, n. 43 (1991). See also Robin West, "Jurisprudence and Gender," University of Chicago Law Review 55 (1988): 1.
[12] Martha Chamallas, "Feminist Constructions of Objectivity: Multiple Perspectives in Sexual and Racial Harassment Litigation," Texas Journal of Women and the Law 1 (1992): 95, 131, 125.
[13] Lavallee v. The Queen, 55 C.C.C. 3d 97 (1990).
[14] Anastasia Toufexis, "Now for a Woman's Point of View," Time, April 17, 1989, p. 51.
[15] Fred Strebeigh, "Defining Law on the Feminist Frontier," New York Times Magazine, October 6, 1991, p. 30; Kenneth Lasson, "Feminist Awry: Excesses in the Pursuit of Rights and Trifles," Journal of Legal Education 42 (1992): 1, 4 n. 15 (noting that "at least one hundred professors teach or have taught courses on women in the law").
[16] Lasson, p. 5 n. 15 (citing these examples as well as a two-volume bound bibliography of feminist law articles).
[17] Schenck v. United States, 249 U.S. 47, 52 (1919).
[18] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
[19] New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
[20] Garrison v. Louisiana, 379 U.S. 64, 74 (1964).
[21] Valentine v. Chrestensen, 316 U.S. 52 (1942).
[22] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
[23] Ibid., p. 763.
[24] Miller v. California, 413 U.S. 15, 24 (1973).
[25] For ban of Dreiser, see Commonwealth v. Friedre, 271 Mass. 318 (1930); for ban of Lawrence, see Commonwealth v. Delacey, 271 Mass. 327 (1930).
[26] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
[27] Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, and Mark V. Tushnet, Constitutional Law (New York: Little, Brown, and Co., 1991), 2d ed., p. 1100.
[28] Brown v. Oklahoma, 408 U.S. 914 (1972).
[29] Stephen W. Gard, "Fighting Words as Free Speech," Washington University Law Quarterly 58 (1980): 531, 536. The kindred notion of group defamation laid out in 1952 in Beauharnais v. Illinois, 343 U.S. 250 (1952), which upheld an Illinois statute banning printed matter that defamed racial or religious groups, is likewise a dead letter. In no subsequent case has a conviction been upheld on these grounds. According to one scholar, it is widely assumed to have been "eroded, if not overturned, in 1969 by Brandenburg v. Ohio" (which set aside the conviction of a Ku Klux Klan member for burning a cross and making racist threats at a Klan rally). Burt Neuborne, "Cycles of Censorship," Constitution (Winter 1992): 23.
[30] On vagueness, see Connally v. General Construction Company, 269 U.S. 385, 391 (1926). On overbreadth, see Grayned v. Rockford, 408 U.S. 104, 109 (1972).
[31] Gooding v. Wilson, 405 U.S. 518 (1972).
[32] Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
[33] Charles Fried, quoted in John Leo, "Scaling the Shabby Barricades," Washington Times, May 7, 1992, p. G4.
[34] 477 U.S. 57 (1986).
[35] See Catharine MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven, CT: Yale University Press, 1979), p. 27 and n. 13.
[36] See, for example, Monge v. Beebe Rubber, 316 A.2d 529 (N.H. 1974) (contract); Miller v. Bank of America, 418 F. Supp. 233 (1976).
[37] MacKinnon, Sexual Harassment of Working Women, p. 27.
[38] Ibid., p. 88.
[39] Ibid., p. 27.
[40] Corne v. Bausch & Lomb, 390 F.Supp. 161 (D. Ariz.
1975).
[41] 413 F.Supp. 654 (D.D.C. 1976).
[42] Baines v. Costle, 561 F.2d 983 (1977).
[43] Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).
[44] Quoted in Tamar Lewin, "Sexual Harassment in the Workplace; A Growing Struggle for Equality," New York Times, November 9, 1986.
[45] See Ellen Frankel Paul, "Sexual Harassment as Sex Discrimination: A Defective Paradigm," Yale Law & Policy Review 8 (1990): 333.
[46] Karl Llewellyn, The Common Law Tradition: Deciding Appeals (New York: Little, Brown & Co., 1960), p. 223.
[47] Robert F. Conte & David L. Gregory, "Sexual Harassment in Employment--Some Proposals Toward More Realistic Standards of Liability," Drake Law Review 32 (1982-83): 407; Lin Farley, Sexual Shakedown (New York: McGraw-Hill, 1978), p. 15 (Sexual harassment is "any or all of the following: staring at, commenting upon, or touching a woman's body; requests for acquiescence in sexual behavior; repeated, non-reciprocated propositions for dates; demands for sexual intercourse; and rape"); MacKinnon, Sexual Harassment of Working Women, p. 1 (Sexual harassment is "the unwanted imposition of sexual requirements in the context of a relationship of unequal power").
[48] "Sexual Harassment," Glamour, January 1981, p. 31; Deborah L. Rhode, "The 'No-Problem' Problem: Feminist Challenges and Cultural Change," Yale Law Journal 100 (1991): 1731, 1776.
[49] Susan Strauss (with Pamela Espeland), Sexual Harassment and Teens: A Program for Positive Change (Minneapolis: Free Spirit Publishing, 1992), p. 15.
[50] The Florida ACLU has, for instance, opposed the more egregious actions of the judge in the Jacksonville shipyard case (see below); however, the national ACLU has stated that "exceptions must be made [to free speech] in the case of sexual harassment." Mike Graham, "Sexism in the Shipyards Sets off Legal Battle," New York Times, November 24, 1991.
[51] Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991).
[52] Ibid., pp. 878-9 (quoting Ehrenreich, "Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law," Yale Law Journal 99 (1990): 1177, 1207-8); and 878 and n. 9 (quoting Kathryn Abrams, "Gender Discrimination and the Transformation of Workplace Norms," Vanderbilt Law Review 42 (1989): 1183, 1205).
[53] Ellison, pp. 877-8.
[54] Ibid., pp. 876, 880 (noting that the district court found that the conduct complained of was trivial and that such an interpretation was not unreasonable). According to the National Law Journal, Ellison "has had a notable influence on subsequent federal and state court decisions. . . . Ellison's reasonable-women standard as applied to sexual harassment has very much taken hold in the courts." Eric Wallarch and Alyse Jacobson, "Reasonable Woman Test Catches On," National Law Journal, July 6, 1992, p. 26.
[55] Ellison, p. 880.
[56] In Interest of Joseph T., 430 S.E.2d 523, 524 (1993).
[57] Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1493 (1991).
[58] Ibid., pp. 1495-6.
[59] Ibid., p. 1499.
[60] Ibid., pp. 1514, 1538; Arthur Hayes, "Pinup Case Splits Free Speech Activists," Wall Street Journal, April 29, 1992.
[61] See Martha T. Moore, "Taste Test: Debate Brews over Selling Beer with Sex," USA Today, November 15, 1991, p. 1B; Carol Kleiman, "Harassment Suit at Stroh Brewery Puts Focus on Company's Own Ads," Chicago Tribune, March 9, 1992, p. 6C.
[62] Ellison, p. 879, n. 12.
[63] Restatement (Second) of Torts, §46, comment a (1965).
[64] Robert Mnoukin and Lewis Kornhauser, "Bargaining in the Shadow of the Law," Yale Law Journal 88 (1979): 950; Henry M. Hart and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 7 (1958); Hugh Ross, Settled Out of Court 3-4 (New York: International Polygonics Ltd., 1970).
[65] Daniel Seligman, "PC Comes to the Newsroom," National Review, June 21, 1993, p. 30.
[66] Nat Hentoff, "Sexual Harassment by Speaker Phone," Washington Post, March 14, 1992, p. A23.
[67] Katie Roiphe, The Morning After: Sex, Fear, and Feminism on Campus, (New York: Little, Brown, 1993), p. 72.
[68] Susan Estrich, "Sex at Work," Stanford Law Review 43 (1991): 813, 826-34.
[69] Ibid., p. 860.
[70] Kirk Johnson, "E-Mail is Reprogramming the Office Romance," New York Times, March 26, 1994, p. 22.
[71] Paul, p. 362.
[72] Ibid., p. 363.
[73] Dinesh D'Souza, Illiberal Education (New York: The Free Press, 1991), p. 148.
[74] Catharine MacKinnon, Testimony on S.1484, Labor and Human Resources Committee, September 10, 1992.
[75] Ibid.
[76] Ibid.
[77] See Jonathan Chait, "Bad Examples," Reason, December 1993, pp. 58-60.
[78] MacKinnon, Testimony.
[79] Sarah Lubman, "Judicially Suspect: Campus Speech Codes Are Being Shot Down as Opponents Pipe Up," Wall Street Journal, December 22, 1993, p. A1.
[80] Ibid., p. A8.
[81] Ruth Shalit, "Romper Room," New Republic, March 29, 1993, p. 14.
[82] Ibid., p. 16.
[83] See Margaret Lillard, "School Sex Harassment," Associated Press wire story, May 31, 1993. See also Mary Jordan, "Sex Harassment Complaints Starting in Grade School: Taunts, Intolerance on the Rise, Survey Finds," Washington Post, June 2, 1993.
[84] Shalit, p. 13.
[85] Lillard.
[86] Jordan.
[87] Strauss and Espeland, p. 8.
[88] Cynthia Grant Bowman, "Street Harassment and the Informal Ghettoization of Women," Harvard Law Review 106 (1993): 517, 519.
[89] Elizabeth Kuster, "Don't 'Hey, Baby' Me: How to Fight Street Harassment," Glamour, September 1992, pp. 311, 333.
[90] Bowman, p. 548.
[91] Cohen v. California, 403 U.S. 15 (1971).
[92] Nadine Strossen, "A Feminist Critique of 'the' Feminist Critique of Pornography," Virginia Law Review 79 (1993): 1099, 1107-8.
[93] Ibid., p. 1108.
[94] See Tamar Lewin, "Furor on Exhibit at Law School Splits Feminists," New York Times, November 13, 1992, p. B16.
[95] For text of the statute and a general account of its passage, see Paul Brest and Ann Vandenberg, "Politics, Feminism and the Constitution: The Anti-Pornography Movement in Minneapolis," Stanford Law Review 39 (1987): 607.
[96] Ibid.
[97] Ibid.
[98] Brest and Vandenberg, pp. 620, 636-7.
[99] While Dworkin and MacKinnon did not draft the Canadian anti-pornography statute, they are closely associated with LEAF (the Women's Legal Education and Action Fund), the Canadian feminist organization which helped pass the law and defend it before Canada's Supreme Court (in Butler v. The Queen, 1 S.C.R. 452 [1992]). MacKinnon helped write the brief for Butler (National Coalition Against Censorship memorandum, September 23, 1993). For the Two Live Crew case, see Her Majesty the Queen v. Marc Scott Emery, 1992 Ont. C. J. Lexis 499 (March 26, 1992) (Ont. Ct. of Justice).
[100] Andrea Dworkin, Intercourse (New York: The Free Press, 1987), p. 137.
[101] Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989), p. 198. "What is sexual is what gives a man an erection. . . . Whatever else does this, fear does, hostility does, hatred does . . . revulsion does, death does." Ibid., p. 137.
[102] See Strossen, p. 1109 and n. 32.
[103] Quoted in Pete Hamill, "Woman on the Verge of a Legal Breakdown," Playboy, January 1993, p. 186.
[104] American Booksellers Association v. Hudnut, 771 F.2d 323 (1985).
[105] Ibid., p. 325.
[106] Ibid., pp. 325, 328.
[107] Ibid., p. 327.
[108] Ibid., pp. 328, 330.
[109] An Act to Protect the Civil Rights of Women and Children, the Commonwealth of Massachusetts, H. 5194, 1992. See also "Censors in Feminist Garb," New York Times, November 19, 1984, p. A22; Thomas C. Palmer, Jr., "A Bill of Divorcement," Boston Globe, March 29, 1992, p. 69.
[110] S. 1521, 102d Cong., 1st Session (1991).
[111] Quoted in Anna-Liza Korman, "Porn Ruling: Canadian Court Ties Obscenity, Violence," Chicago Tribune, June 14, 1992, p. 1.
[112] Quoted in ibid.
[113] Quoted in ibid.
[114] See Strossen, pp. 1130-34.
[115] For an account of the banning of the Miss Canada pageant see Anna-Liza Korman, "Past Perfect," Chicago Tribune, February 9, 1992, p. 4. On the beer ads, see Dianne Allen, "Waiter, My Beer Is Sexist", The Gazette (Montreal), July 21, 1991, p. A1; "Hop-
ping Mad: In Canada, Controversy Brews as Ontario Bans Sexist Beer Ads," Los Angeles Times, April 4, 1991, p. E1.
[116] Suzanne Skubik, "Gendered Justice" (International News), Ms., May/June 1993, p. 11.
[117] I. Matthew Hale, The History of the Pleas of the Crown, *635 (1778).
[118] See People of California v. Rincon-Pineda, 538 P.2d 247 (1975). See also Leon Letwin, "'Unchaste Character,' Ideology, and the California Rape Evidence Laws," Southern California Law Review 54 (1980): 35, 38-39, 43-52.
[119] See, for example, Comment, "Towards a Consent Standard in the Law of Rape," University of Chicago Law Review 43 (1976): 613, 637-8.
[120] Brown v. State of Wisconsin, 106 N.W. 536, 539 (1906). See also Note, "Recent Statutory Developments in the Definition of Forcible Rape," Virginia Law Review 61 (1975): 1500, 1505-7.
[121] People v. Nash, 261 Cal. App. 2d 216, 224 (1968).
[122] State v. Harris, 174 A.2d 645 (1961).
[123] Gonzales v. State, 516 P.2d 592, 593 (1973).
[124] Ibid., p. 594.
[125] People v. Barnes, 721 P.2d 110 (1986).
[126] Ibid., p. 116 n. 12.
[127] Ibid.
[128] Ibid., p. 122.
[129] George P. Fletcher, "Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases," Yale Law Journal 77 (1968): 880, 882.
[130] In re Winship, 397 U.S. 358, 364 (1970).
[131] Barbara D. Underwood, "The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases," Yale Law Journal 86 (1977): 1299, 1300.
[132] Woolmington v. Director of Public Prosecutions, A.C. 462, 481 (1935).
[133] Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law, (St. Paul: West Publishing Co., 1986), § 1.2, pp. 10-11.
[134] This is the common law definition of "burglary." Different jurisdictions have refined the definition.
[135] Underwood, p. 1332.
[136] LaFave and Scott, § 2.13, p. 233 n. 51.
[137] Note, Columbia Law Review 55 (1955): 527, 545.
[138] Williams v. United States, 327 U.S. 711, 715 (1946) (noting that a conviction for rape cannot be sustained under federal law absent proof of the lack of consent); Dana Berliner, "Rethinking The Reasonable Belief Defense to Rape," Yale Law Journal 100 (1991): 2687, 2690 (noting that "the prosecution must prove that the defendant had sexual intercourse without the consent or against the will of the victim").
[139] People v. Thompson, 324 N.W.2d 22, 24-5; Ill. Rev. Stat. ch. 38 para. 3-2(b) (1984). See Cynthia Ann Wicktom, "Focusing on the Offender's Forceful Conduct: A Proposal for the Redefinition of Rape Laws," George Washington Law Review 56 (1988): 399, 424-27.
[140] Wicktom, p. 429.
[141] Ibid., p. 430.
[142] State v. Camera, 113 Wash 2d. 631, 638-40, 781; Bowman, 2d, pp. 483, 487 (1989).
[143] N.J.S.A. 2c:2-10 (West 1982).
[144] State of New Jersey In the Interest of M.T.S., 609 A.2d 1266, 1276, 1274-8 (1992).
[145] Ibid., pp. 1276, 1278.
[146] Charles Hutzler, "Sex Without 'Freely Given Permission' Is Rape, Court Rules," United Press International, July 30, 1992.
[147] Stuart Taylor, "On Appeal, KO the Tyson Verdict," Legal Times, April 6, 1992, p. 23.
[148] "New Perspective on Rape," Los Angeles Times, April 25, 1991, p. B7.
[149] Black's Law Dictionary, 6th ed. (St. Paul: West Publishing Co., 1991).
[150] Susan Estrich, "Rape," Yale Law Journal 95 (1986): 1087, 1183-4.
[151] Ibid., p. 1157.
[152] Ibid., pp. 1093, 1132, 1182.
[153] Commonwealth of Pennsylvania v. Robert Berkowitz, 609 A.2d 1338, 1340 (1992).
[154] Ibid., p. 1347.
[155] Emilie Lounsberry, "Court: 'No' Is Not Enough in Rape Cases," Philadelphia Inquirer, June 2, 1994, p. 1.
[156] 18 Pa.C.S.A. § 3107.
[157] Lounsberry.
[158] Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987), p. 82 (emphasis added).
[159] Edward Correia, "A Proposal For Civil Prosecution Of Date Rape," Massachusetts Lawyers Weekly, February 17, 1992, p. 5.
[160] Ibid.
[161] The "Violence Against Women Act," S.15, 102d Congress, 1st Session (1991); S.11, 103d Congress, 1st Session (1993). See also, W. H. Hallock, "The Violence Against Women Act: Civil Rights for Sexual Assault Victims," Indiana Law Journal 68 (1993): 577; Ruth Shalit, "Caught in the Act," New Republic, July 12, 1993, p. 12; John Leo, "Radical Feminism in the Senate," U.S. News & World Report, p. 19; Cathy Young, "The Sexist Violence Against Women Act," Wall Street Journal, March 23, 1994, p. A15.
[162] "Women and Violence," Hearings on Legislation to Reduce the Growing Problem of Violent Crime Against Women Before the State Committee on the Judiciary, Part 1, p. 36.
[163] Jeanie Kasindorf, "New Research: Why Men Rape," Redbook, January 1993, p. 93.
[164] For New Mexico reference, see A. Kaufman, P. Divasto, R. Jackson, D. Voorhees, and J. Christy, "Male Rape Victims: Noninstitutionalized Assault," American Journal of Psychiatry 137 (1980): 221-3. For South Carolina reference, see B. Forman, "Reported Male Rape," Victimology: An International Journal 7 (1982): 235-6.
[165] Sam Roe and Nara Schoenberg, "Rape: The Making of an
Epidemic" (Part 2), The Blade, October 11, 1993, p. 5.
[166] John L. Baier, Marianne G. Rosenzweig, and Edward G. Whipple, "Patterns of Sexual Behavior, Coercion,, and Victimization of University Students," Journal of College Student Development 32 (1991): 316.
[167] Timothy J. Flanagan and Kathleen Maguire, Sourcebook of Criminal Justice Statistics 1991. (U.S. Department of Justice, Bureau of Justice Statistics.) (Washington, D.C.: U.S. Government Printing Office, 1992), Table 3.29, p. 283.
[168] W. H. Hallock, "The Violence Against Women Act: Civil Rights for Sexual Assault Victims," Indiana Law Journal 68 (1993): 607.
[169] See Charlotte Allen, "The King Cops and Double Jeopardy," Wall Street Journal, May 20, 1992, p. A17; Alan Dershowitz, "Rights at Risk in a Retrial," Washington Times, May 10, 1992, p. B3.
[170] Leo.
[171] Ruth Shalit, "Caught in the Act," New Republic, July 12, 1993, p. 14.
[172] Catharine MacKinnon, "The Palm Beach Hanging," The New York Times, December 15, 1991.
[173] Judy Mann, "Clearing Up Mixed Signals," Washington Post, February 7, 1992, p. E3; William Claiborne, "When No Means No in Canada," Washington Post, December 13, 1991,
p. C1.
[174] Ibid.
[175] Ibid.
[176] "Top Court to Hear Sex Case Appeal," Toronto Star, May 28, 1993, p. A28.
[177] Ibid.
[178] Roiphe, p. 51.
[179] MacKinnon, Feminism Unmodified, p. 181.
[180] MacKinnon, Toward a Feminist Theory of the State,
p. 125.
[181] Ibid., p. 146. "When a woman accepts what would be rape if she did not accept it, what happens is sex." Ibid.,
p. 134.
[182] Quoted in Jack Kammer, Good Will Toward Men (New York: St. Martin's Press, 1994), p. 153.
[183] People v. Barnes, 721 P.2d 110, 122 (1986).
[184] Lawrence W. Sherman, Policing Domestic Violence: Experiments and Dilemmas (New York: The Free Press, 1992), p. 46.
[185] Ibid., p. 39.
[186] Ibid., p. 253.
[187] Ibid., p. 2. See also Fern Shen, "Coalition Urges State to Pass Domestic Abuse Law," Washington Post, January 27, 1994; Charles Babington, "House Strengthens Abuse Bill," Washington Post, March 26, 1995, p. A1.
[188] See Catherine S. Manegold, "Making Spouse Abuse a Crime a Spouse Can't Forgive," The New York Times, May 1, 1994,
p. 18E; James W. Dolan, "Women Twice Abused: By Lovers and the Courts," Boston Globe, July 10, 1993, p. 11.
[189] Sherman, p. 37.
[190] Ibid., pp. 173-187, 247-55.
[191] Ibid., p. 265.
[192] The "Violence Against Women Act," p. 176.
[193] See, for example, Murray Straus and Richard Gelles, Physical Violence in American Families (New Brunswick, N.J.: Transaction Publishers, 1990).
[194] Murray Straus and Jan E. Stets, "Gender Differences in Reporting Marital Violence," in Straus and Gelles, p. 154.
[195] Sherman, p. 121.
[196] Quoted in Young, p. A16.
[197] The "Violence Against Women Act," p. 177.
[198] Bryan Miller, "Thou Shalt Not Stalk," Chicago Tribune, April 18, 1993, p. 14C.
[199] Rene Sanchez, "City Weighs Tough Law on Stalking; Council Determining How Far Is Too Far," Washington Post, April 8, 1993, p. J1.
[200] See Flynn McRoberts, "Chaney Case Leaves Trail of
Wreckage, Hope," Chicago Tribune, March 17, 1993, p. 1NW.
[201] Miller, p. 14C.
[202] D.C. Act 10-46 in the Council of the District of Columbia, 1993 D.C. ALS 53; 1993 D.C. Stat 53; 1993 D.C. Law 53; 1993 D.C. Act 46.
[203] 1993 Pa. ALS 28; 1993 Pa. Laws 28; 1993 Pa. HB 3.
[204] Sanchez.
[205] George Lardner, Jr., "Anti-Stalking Laws Proliferate; Several Face Court Challenges," Washington Post, April 30, 1993, p. A2.
[206] Official Code of Georgia Annotated, 16-5-90 (1993).
[207] Sanchez.
[208] Lardner.
[209] Ibid.
[210] Ibid.
[211] "Accused Stalker Gets Probation," United Press International wire report, June 19, 1993.
[212] McRoberts.
[213] U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, 1990 (Washington, D.C.: U.S. Government Printing Office, 1991), p. 13.
[214] Elaine M. Epstein, "Speaking the Unspeakable," Massachusetts Bar Association Newsletter, vol. 33, no. 7, June/July 1993, p. 9.
[215] Lenore E. A. Walker, "Psychology and Violence Against Women," American Psychologist, April 1989, p. 695.
[216] Lenore Walker, The Battered Woman (New York: Harper Collins, 1979), p. xv (emphasis added). See also David L. Faigman, "To Have and Have Not: Assessing the Value of Social Science to the Law as Science and Policy," Emory Law Journal 38 (1989): 1005, 1056 (discussing Walker's ap-
proach); Book Note, "Generalizing Justice Terrifying Love: Why Battered Women Kill and How Society Responds," Harvard Law Review 103 (1990): 1384.
[217] Ibid., p. xiv.
[218] Ibid., p. 98.
[219] Doug Brown, "Wife-Battering: Normal for Many," Los Angeles Times, June 20, 1985, View Section, p. 1 (quoting and discussing a speech by Lenore Walker).
[220] Quoted in Gerald Caplan and Murray N. Rothbard, "Battered Wives, Battered Justice," National Review, February 25, 1991, p. 39.
[221] Elizabeth Schneider, "Particularity and Generality: Challenges of Feminist Theory and Practice in Work on Woman-Abuse," New York University Law Review 67 (1992): 520, 563.
[222] Ibid., p. 558; see also Martha R. Mahoney, "Legal Images of Battered Women: Redefining the Issue of Separation," Michigan Law Review 90 (1991): 85-87; Arlene Kristal, "You've Come a Long Way, Baby: The Battered Woman's Syndrome Revisited," New York Law School Journal of Human Rights 9 (1991): 111.
[223] Ibid., p. 558.
[224] Feminist defense attorneys also object to the fact that the insanity defense raises the prospect of the woman's detention in a mental hospital. Schneider & Jordan, pp. 159-60. See generally, Elizabeth Schneider, "Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense," Harvard Civil Rights and Civil Liberties Law Review 15
(1980): 623, 638. Walker's comments on normality are quoted in Kristal, p. 146.
[225] Quoted in Brown.
[226] Ibid.
[227] See George Lane, "Psychogenic Amnesia Suffered by Peggy Saiz, Witness Claims," Denver Post, October 8, 1993, p. B5; Kevin Simpson, "Lenore Walker Takes the Stand for Another Lethal Woman," Denver Post, October 7, 1993, p. B1.
[228] IBN-Tamas v. United States, 407 A.2d 626, 634-5 (D.C. 1979).
[229] Book Note, Harvard Law Review 103 (1990): 1394. See also Dolores A. Donovan and Stephanie M. Wildman, "Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation," Loyola of Los Angeles Law Review 14 (1981): 435 (in the context of self-defense and provocation).
[230] Model Penal Code § 3.04 (American Law Institute, 1985).
[231] Holly Maguigan, "Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals," University of Pennsylvania Law Review 140 (1991): 379.
[232] Williams v. State, 70 S.W. 756, 757-8 (1902).
[233] See Maguigan, pp. 409-413. In judging self-defense claims, some states apply an "objective" reasonableness test (requiring the jury to measure the defendant's belief in the necessity of using deadly defensive force by the standard of what a generic "reasonable person" would have believed and done under the circumstances, while others require a combination of the "subjective" test (whether the defendant honestly believed that he or she was in grave danger) and an objective test of how a reasonable person in the defendant's circumstances would have perceived the situation.
[234] State v. Leidholm, 334 N.W.2d 811 (N.D. 1983).
[235] Kaplan.
[236] Model Penal Code § 210.3 (American Law Institute,
1985).
[237] Lavallee v. The Queen, 55 C.C.C. 3d 97 (1990).
[238] Tracey Taylor, "Group Wants to Reopen Cases Using Battered Women Defence," Toronto Star, January 7, 1991, p. A1.
[239] "Irene Seale Sentenced to 20 Years," Star-Ledger, January 26, 1993, p. 1.
[240] Carl Manning, "Copeland Seeking New Trial," St. Louis Post-Dispatch, February 22, 1994, p. 2C.
[241] Tamar Lewin, "Criticism of Clemency May Affect Efforts to Free Battered Women," New York Times, April 2, 1991,
p. A17.
[242] Geraldine Baum, "Should These Women Have Gone Free?" Los Angeles Times, April 15, 1991, p. E1.
[243] Alan Dershowitz, "Battered Family Bogeydata," Washington Times, July 22, 1994, p. A18. The cases were analyzed in the special report by John M. Dawson and Patrick A.
Langan, "Murder in Families" (U.S. Department of Justice, Bureau of Justice Statistics, July 1994). Interestingly, the official report did not include a breakdown of trial outcomes and sentences by gender; these data were tabulated by one of the statisticians at Dershowitz's request. Der-
showitz cautions that the disparity between the treatment of male and female spousal killers may be due in part to differences in past offense records.
[244] Coramae Richey Mann, "Getting Even? Women Who Kill in Domestic Encounters," Justice Quarterly, March 1988.
[245] Steve Metzger, "The Shooting of Josh Wagshall," Transitions, vol. 8, no. 2, March/April 1988, p. 2.
[246] Quoted in Frank Jones, "Feminists Call to Kill Men is Outrageous," Toronto Star, May 16, 1991, p. S1.
[247] Leslie Bender, quoted in Tamar Lewin, "Feminist Scholars Spurring a Rethinking of Law," New York Times, September 30, 1988, p. B9.
[248] Quoted in ibid.
[249] Quoted in ibid.
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