Killing is a serious act for any society to deal with, which is why it is so carefully regulated and so seriously debated. Although almost all instances of killing are considered wrong, there are cases where we, as a society, have decided that it is "less wrong" and should result in a lesser sentence than in more heinous cases. These are cases of self defense and provocation.
The body of law applied in such cases has evolved over time, but is currently embodied in the "reasonableness doctrine." This means jurors are instructed to consider whether a "Reasonable Man" (or "Person") would be provoked enough or afraid enough for his/her life to kill in a certain situation. For example, we might agree that if a stranger approaches menacingly with a knife in a dark parking lot while saying, "I'm going to take you out!" that a reasonable person would be terrified for his/her life and might be justified in using lethal force to stop the attack. Killing is always reprehensible, but surely that person should receive a lighter sentence than the would-be killer should have received if he had succeeded.
All of this sounds great in the abstract, but as with all law, the devil is in the details. In "Murder and the Reasonable Man," Cynthia Lee explores some of the hidden pitfalls in the reasonableness doctrine and offers modifications on it that could make it more just.
The ideas in this book are quite interesting, but Lee does not execute very well. The logic flows as if she is the prosecuting attorney in a trial with the reasonableness doctrine as the defendant. The reader gets the sense that the evidence is being presented so as to slant the bias toward her views. In some cases too much data is piled on, while in others the facts seem sparse. She does not always use statistics objectively. And finally, the latter chapters, where she wraps up her case, are somewhat disorganized. I would have preferred more conciseness in the early chapters (where the prose is ample) and expansion in the later ones (where Lee seems to rush through her points). The book rates a "weak +."
But the topic is well worth exploring. I actually recommend this book despite the mediocre rating. Lee's thesis is that the reasonableness doctrine contains inherent bias toward societal norms-- norms that favor white heterosexual men over women, people of color, and nonheterosexuals. This is another example of the way in which straight white men are considered neutral or normal, and the way in which their interests are automatically protected.
You will feel angered by Lee's case studies. She tells of cases, most from just a few years ago, in which men literally get away with murder-- for catching their wives in bed with other men, for having a gay man make a pass at them, for being afraid of another man just because he is black (or in one case, Chinese-- the white guy killed him because he figured he must know kung fu). What is scarier: that these men could actually be enraged/scared enough to kill in these cases, or that juries of twelve peers agreed and let the guy get off with a light sentence? [To be fair, some cases involved female killers, but as with all violent crimes, their numbers are miniscule compared to those of men].
It is easy for people to fall prey to common stereotypes or to be unduly influenced by societal expectations. This allows white people to be irrationally afraid of a black person. It allows men to be so concerned about their masculinity that they value this quality over the life of another human. It is sad but true that humans will behave this way, sometimes with disastrous consequences.
The irony of reasonableness in law is that juries are debating whether a reasonable person would allow all reason to vanish in a certain situation, thus enabling them to kill. And juries are just as likely to employ stereotypes and expectations that result in sympathy with the defendant (the person who killed). Sure, they think, I can see how a guy would be enraged to have another man's hand on his leg. I can see how he'd be pissed off that his wife betrayed him.
OK.... but what if it were a woman catching her husband in bed with another woman? Would it be "reasonable" for her to pull out a gun and start shooting? If you don't think so, why not? Probably because we don't consider violence "reasonable" for a woman in that case. So a jury would likely charge the enraged wife with murder while letting off the enraged husband with manslaughter since it was more "reasonable" for him to kill.
It's hard to imagine that we really intended our murder laws to be gender-specific with tougher standards for women, but that's how it turns out with the reasonableness doctrine.
It's even more striking for nonheterosexuals. What if a straight man puts his hand on a lesbian's leg? She is just as annoyed by that as a straight man getting hit on by a gay man, but few people think her rage excuses killing. If you are concerned that the straight man could reasonably assume she was straight, then consider the case of a lesbian woman hitting on a straight woman. Or a straight man hitting on a straight woman, but in a really obnoxious, intrusive, and offensive way. Acceptable provocation? Probably not. Only straight men are allowed to get that enraged over their precious manhood.
It's the same for racial minorities. Black men cannot convince juries that a white man "just seemed threatening in his demeanor," but white men routinely do this regarding black, Hispanic, and Asian men. Juries think about it a bit, and decide that yes, it would be "reasonable" to be mortally afraid of that man of color.
Lee aptly points out that all of these issues are embedded in the concept of reasonableness. Thus she favors some modifications to the doctrine and some additional jury instructions to help people understand how to apply the doctrine.
Without going into all the technical details, these include the need for "act" reasonableness as well as "emotion" reasonableness. And juries can employ the technique of race-switching, gender-switching, or sexual orientation-switching to see how their biases might be creeping in unconsciously. These concepts lead toward a "normative" concept of reasonableness rather than the more "subjective" one we employ today, meaning that juries consider whether a reasonable person ought to have been enraged/fearful in that situation, rather than whether an average person would have been.
(As noted above, these concepts are poorly organized at the end, so I'm not totally sure I got all of them correct. But I believe this is the essence of what Lee says).
It's interesting and important stuff for a diverse society like ours to work out. Just how do we want to lay all of this out in our legal system so that it can be applied fairly? In what cases should we worry that gender bias might creep in, and in what cases is gender irrelevant even though it looks superficially so? When does the cultural background of someone matter-- say, if they're fresh from Thailand where cultural norms are different-- and when should they be held to a more "average" standard? (And who decides what is average or standard? White heterosexual males?).
One thing I started thinking about, even though Lee doesn't explicitly discuss it, is to what degree the law should lead and to what degree it should merely reflect society. If people are racist, sexist, and narrow-minded, living in a patriarchal standard as we do, perhaps that's what the law should reflect. (And it does). Only when cultural changes are made toward a more fair-minded approach should the law change.
Of course, my liberal soul cries out in anguish at this idea when I read about Matthew Shepard and the Japanese exchange student who was shot because he went to the wrong house for a party and didn't understand the word "freeze" when the gun was pointed at him (from inside the house where its wielder was perfectly safe from any real or imagined harm). I want to say, NO. I don't care if you were raised a redneck in the most racist state of our union, you don't have the right to be an asshole racist and react to an Asian as if he were not a fellow human being.
But then I think about other directions the law could go in if it were to start "leading" culture. Might the conservative Christians, who make up a frightening minority of Americans (something like 30-40%) start enacting laws? (Oh hell, they already are). In these cases, I would cry out that they weren't acting in a way that the majority of people agreed with. I would want "average" standards.
The law must walk a tricky balance between leading and reflecting. And the most important thing is to remember the real goal of the law: justice. Making sure that good people are protected and bad people are deterred, punished (with mercy), and then rehabilitated, so that we can all live together in peace. Anytime we are not working toward that goal, we have left the path of true justice.
So in the end, I agree with Lee that the reasonabless doctrine as it stands could use some modification. It is not working if it is allowing select people to get away with murder. Read this book to get a taste of a tricky issue in law, but be prepared to do a lot of mental work yourself in synthesizing the pieces.
Copyright © Kim Allen 2003
