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82 Cal L. Rev. 1 (1994)
Excusing Women

handle is hein.journals/calr82 and id is 15 raw text is: California Law Review VOL. 82 JANUARY 1994 No. 1 Copyright © 1994 by California Law Review, Inc. Excusing Women Anne M. Cougblint In rare instances, the criminal law allows defendants to offer claims of excuse in order to avoid criminal responsibility. Over the past two decades, women offenders have begun to offer the battered woman syn- drome defense as an excuse to a variety of crimes, ranging from homicide to fraud. While many feminist scholars have concluded that courts should consider evidence of abuse the accused woman endured at the hands of her husband, others have argued that this defense institutionalizes negative ste- reotypes of women. In this Article, the author agrees with the feminist cri- tique of the battered woman syndrome defense, but argues that the critique is inadequate because the negative implications for women go beyond the reinforcement of gender roles. The defense reaffirms that women lack the same capacity for rational self-control that is possessed by men and thereby exposes women to forms of interference against which men are secure. Attempts to reconfigure the defense are likely to fail because the defense affirms the hierarchical understanding of gender that feminism has been determined to dismantle. The author concludes that the practice of excus- ing women reveals the inadequacy of the theory of responsibility presently endorsed by the criminal law. The present theory is incapable of accommo- dating women's experiences without judging women to be deviant from and inferior to the model human actor, and therefore should be revised to include characteristics traditionally associated with and internalized by women. Copyright © 1994 California Law Review, Inc. t Assistant Professor of Law, Vanderbilt Law School. B.A. 1978, Tufts University; M.A. 1979, Columbia University; J.D. 1984, New York University. I am grateful for the helpful suggestions and comments made on earlier drafts by Anita Bernstein, John Costonis, Don Hall, Nancy King, Jason Johnston, Mark Langlet, Bob Rasmussen, Steve Schulhofer, and Bill Stuntz. I owe special thanks to Tom Burish and Steve Hollon for their comments on my discussion of the psychological theory underlying the battered woman syndrome defense. Helpful research assistance was provided by Steve Addlestone, Christine Ellerman, Lauren Levy, Craig Mordock, Bryan Pieper, and Robert Rea.

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