Capital Gazette wins special Pulitzer Prize citation for coverage of newsroom shooting that killed five

The reasonable woman


WASHINGTON -- After having sex with her husband, who then fell asleep, the Denver woman, who was having an extramarital affair at the time and had recently taken out a large life-insurance policy on her husband, shot him. She then disordered the house to suggest that the killer had been a burglar, and went to a disco with her sister.

Her conviction was a setback for Lenore Walker, who testified as an expert witness that the woman's behavior was consistent with the "battered woman syndrome." Ms. Walker says a battered woman is one "repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights" (emphasis added).

Concerning another case, in which the woman initiated the assault, throwing a glass at the husband's head and hitting him with a chair, Ms. Walker says the husband "had been battering her by ignoring her and by working late."

In Canada a woman was convicted only of second-degree murder after she stabbed to death her boyfriend following a quarrel. He had never abused her but she is seeking a new trial because she says her history of being abused by other men means she should be able to cite the battered-woman syndrome as a defense.

Shot from behind

In another Canadian case the syndrome served not merely to establish a mitigating circumstance to reduce the charge from murder to manslaughter, but to produce the acquittal of a woman who had shot her husband in the back of the head as he was leaving the room after threatening her.

Such cases overturn the traditional rule that deadly force can only be justified by an imminent threat.

Such troubling cases are cited by Michael Weiss and Cathy Young in their study "Feminist Jurisprudence: Equal Rights or Neo-Paternalism?" published by the Cato Institute, Washington's libertarian think tank.

Mr. Weiss, a law professor associated with the Texas Public Policy Foundation, and Ms. Young, vice president of the Women's Freedom Network, argue that feminist jurisprudence is portraying women as perpetual victims in need of dispensations that seem to ratify some unflattering stereotypes. These include the neo-Victorian notion that women are frail creatures, easily unhinged, and perhaps having a single sensibility.

The Supreme Court has ruled that a woman can sue an employer for sexual harassment if she experienced a "hostile work bTC environment." Although Mr. Weiss and Ms. Young are uneasy about intrusive government "regulating the comfort level of the workplace," obviously hostile environments exist and should be actionable.

"Discomfort" in the "environment"

But some feminists insist that harassment be defined as any behavior or "environment" that causes any woman "discomfort." Mr. Weiss and Ms. Young compare that to replacing speed limits with a law under which one could be fined for driving through a neighborhood at any speed that made any resident uncomfortable. And is there not something amiss when, as in Minnesota, sexual-harassment law covers children from kindergarten on?

Regarding rape, for too long many courts considered rape complaints inherently less trustworthy than complaints pertaining to other crimes, and rape laws unjustly required proof not only of force but of resistance to force, a standard that required victims to risk additional physical harm. But now, write Mr. Weiss and Ms. Young, some states' laws have eliminated physical force as an element of the crime. Others, virtually reversing the burden of proof, require the accused to prove consent as an affirmative defense.

In Canada, sex is rape when the man fails to "take reasonable steps" to ensure consent. Mr. Weiss and Ms. Young worry that rape law is sliding from "no means no" to "absence of a yes means no" to a strict criminal-liability regime in which "all heterosexual sex is like statutory rape unless affirmative, explicit verbal consent given in a clear and sober frame of mind can be demonstrated." They cite a dissenting feminist who says "the idea that only an explicit yes means yes" patronizes women by implying "that women, like children, have trouble communicating what they want."

However, the feminist avant-garde is thinking like this: A woman sued a moving company for damaging her household goods. She lost because she had signed a contract containing an insurance waiver without reading it. A feminist law professor says the woman should have been able to collect anyway, given that she signed hurriedly only because the house was cold and the movers were weary. The professor says the court should have considered that "women are socialized to value other people's feelings highly, so she was acting like a reasonable woman."

George F. Will is a syndicated columnist.

Pub Date: 7/18/96

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