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Responsibility and the Abuse Excuse*

  • Michael Stocker (a1)

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Does a woman's being repeatedly battered by her husband excuse her killing him while he was asleep? This and similar questions are often dealt with by asking a more general question, “Should we accept abuse excuses?” These questions engender a lot of heat, but little light, in the media and other public forums, and even in the writings of many theorists. They have been discussed as if there is a typical abuse excuse we can examine in order to examine abuse excuses in general. Similarly, the question of whether we should accept abuse excuses has often been discussed as if it is simple and straightforward. But there is no one typical abuse excuse, and the question of whether to accept such excuses is neither simple nor straightforward. There are many different abuse excuses, many different circumstances in which they are deployed, and many different sorts of concerns motivating their use. In this, abuse excuses are just like other, well-accepted excuses, such as self-defense.

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1 Dershowitz, Alan, The Abuse Excuse and Other Cop-Outs, Sob Stories, and Evasions of Responsibility (Boston: Little, Brown, and Co., 1994) is not the most egregious of the works which purport to show this, but it is a good place to start. Moreover, it provides a useful list of new excuses that Dershowitz and many others find so objectionable. A good source on the complexities of abuse excuses and similar excuses is the symposium in the Spring 1996 issue, volume 57, of the University of Pittsburgh Law Review.

2 Wilson, James Q., Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? (New York: Basic Books, 1997).

3 The first quote is from ibid., 3, the second from ibid., 23–24. (Insofar as clarity allows, page references will henceforth be given in the text.) The internal notes are Wilson's. Note iii refers to Dershowitz, , The Abuse Excuse, 321–41. I will follow Wilson in, perhaps mislead-ingly, calling all these new, controversial excuses, abuse excuses, even though only some have to do with abuse.

Note iv refers to Delgado, Richard, “‘Rotten Social Background’: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?Law and Inequality Journal 3 (1985): 9; and to Bazelon, David L., “The Morality of the Criminal Law,” Southern California Law Review 49 (1976): 385. These two essays are reprinted in Justification and Excuse in the Criminal Law, ed. Corrado, Michael Louis (New York: Garland, 1994). Bazelon's article is discussed briefly below.

4 On learned helplessness, see Walker, Lenore, Terrifying Love: Why Battered Women Kill and How Society Responds (New York: Harper Collins, 1989). Other references can be found in Downs, Donald Alexander, More Than Victims: Battered Women, the Syndrome Society, and the Law (Chicago: University of Chicago Press, 1996).

5 For self-respect and justice considerations, see Zipursky, Benjamin, “Self-Defense, Dom ination, and the Social Contract,” University of Pittsburgh Law Review 57 (1996): 579.

6 See Rosen, Richard A., “On Self-Defense, Imminence, and Women Who Kill Their Batterers,” North Carolina Law Review 71 (1993): 371.

7 For harmful conflations and omissions of this sort, see Showalter, Elaine, Hystories: Hysterical Epidemics and Modern Media (New York: Columbia University Press, 1997). Downs holds that (many of) those who link learned helplessness and the battered-woman syn drome make this error by not discussing other outcomes of the syndrome and what led to it. But from what he writes, it is unclear whether they hold that learned helplessness is the only outcome, or whether, for other reasons, they focus only on that outcome. Downs, himself, comes close to making this error. As one of his central criticisms of explanations of behavior in terms of learned helplessness, he writes that battering is often accompanied by heightened reason with which the battered women perceive impending danger” (More Than Victims, 5). But he does not show how the outcome of heightened reason in some battered women tells against learned helplessness being an outcome in some other battered women. (Downs here cites Blackman, Julie, “Potential Uses for Expert Testimony: Ideas toward the Representation of Battered Women Who Kill,” Women's Rights Law Reporter 9 [1986]: 231. Downs also cites Blackman, , Intimate Violence: A Study of Injustice [New York: Columbia University Press, 1989].)

8 Downs, , More Than Victims, 8, citing Allard, Sharon Angella, “Rethinking Battered Woman Syndrome: A Black Feminist Perspective,” UCLA Women's Law Journal 1 (1991): 193–94, 206, which in turn quotes Sagaw, Shirley, “A Hard Case for Feminists: People v. Goetz,” Harvard Women's Law Journal 10 (1987): 256 n. 21. See also Ritchie, Beth, Compelled to Crime: The Gender Entrapment of Battered Black Women (New York: Routledge, 1996).

9 Wilson, , Moral Judgment, 7275. The internal notes are Wilson's. Note iii refers to Beattie, J. M., Crime and the Courts in England, 1660–1800 (Oxford: Clarendon Press, 1986), 618; note iv refers to ibid., 630. Note vi refers to Wiener, Martin J., Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914 (Cambridge: Cambridge University Press, 1990); notes viii and ix refer to ibid., 48. Note x refers to Hay, Douglas, “Crime and Justice in Eighteenth-and Nineteenth-Century England,” in Crime and Justice, ed. Morris, Norval and Tonry, Michael (Chicago: University of Chicago Press, 1980), 2:57.

10 See, e.g., Sartre, Jean-Paul, Anti-Semite and Jew (New York: Schocken Books, 1976).

11 Gilligan, James, Violence: Our Deadly Epidemic and Its Causes (New York: G. P. Putnam, 1996).

12 Morse, Stephen J., “The Twilight of Welfare Criminology: A Reply to Judge Bazelon,” Southern California Law Review 49 (1976); reprinted in, and quoted from, Corrado, , ed., Justification and Excuse in the Criminal Law (supra note 3), 550–51. The Bazelon article, cited in note 3, also appears in the Corrado volume.

13 West, Cornel, Race Matters (New York: Vintage Press, 1994).

14 Fletcher, George, With Justice for Some (New York: Addison Wesley, 1995), 19.

15 The issues discussed in this paragraph and the next two (through the quote from Vladimir Jankelevitch) are drawn from Stacker, Michael and Hegeman, Elizabeth, Valuing Emotions (Cambridge: Cambridge University Press, 1996), 214–17.

16 This is described in Gaylin, Willard, The Killing of Bonnie Garland (New York: Penguin, 1983).

17 Berman, Paul, “The Other and the Almost the Same,” New Yorker 70 (02 28, 1994): 62.

18 Stacker, Michael, “Act and Agent Evaluations,” The Review of Metaphysics 27 (1973): 4261. This is discussed further in Stacker, Michael, Plural and Conflicting Values (Oxford: Oxford University Press, 1990); and in Stacker, and Hegeman, , Valuing Emotions.

19 Strawson, Peter, “Freedom and Resentment,” Proceedings of the British Academy 48 (1962): 187211.

20 See, for example, Moore, Michael S., “Choice, Character, and Excuse,” Social Philosophy and Policy 7, no. 2 (Spring 1990): 2958; Arenella, Peter, “Convicting the Morally Blameless: Reassessing the Relationship between Legal and Moral Accountability,” UCLA Law Review 39 (1992): 1151; and Arenella, , “Character, Choice, and Moral Agency: The Relevance of Character to Our Moral Culpability Judgments,” Social Philosophy and Policy 7, no. 2 (Spring 1990): 5983. Moore's article and Arenella, 's “Character, Choice, and Moral Agency” are reprinted in Corrado, , ed., justification and Excuse in the Criminal Law.

21 For Aristotle, , see Nicomachean Ethics, Book III, chs. 1–5, especially ch. 2. See also Sherman, Nancy, The Fabric of Character (Oxford: Oxford University Press, 1989); and Meyer, Susan Sauvé, Aristotle on Moral Responsibility (Oxford: Blackwell, 1993).

22 Aristotle, , Nicomachean Ethics, Book III, ch. 1.

23 See, for example, ibid., Book III.

24 My thanks are owed to Alvin Goldman for raising this latter point.

25 See, e.g., Care, Norman, Living with One's Past: Personal Fate and Moral Pain (Lanham, MD: Rowman and Littlefield, 1996).

26 On these points, see Stacker, and Hegeman, , Valuing Emotions.

27 On these issues, see Goldman, Alvin, “Epistemic Paternalism: Communication Control in Law and Society,” The Journal of Philosophy 88 (1991): 113–31.

28 I have been helped here by Arenella's discussion of Strawson, , in “Convicting the Morally Blameless,” 1535–44.

29 Bellas, Christopher and Sundelson, David, The New Informants: The Betrayal of Confidentiality in Psychoanalysis and Psychotherapy (Northvale, NJ: Jason Aronson, 1995), 8082.

30 My thanks are owed here to Judge Angela Karpin of the District Court, New South Wales, Australia.

* My warmest thanks for their invaluable help are owed to Elizabeth Hegeman, John Draeger, and Erik Schmidt; to other members of my Spring 1998 Syracuse University seminar on responsibility; to the other contributors to this volume; and to its very helpful editors.

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