Women on Trial
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Imagine two screaming headlines in any
city tabloid at any point in this nation's
history:
DRUG-CRAZED, KNIFE-WIELDING
ATTACKER KILLED BY HIS
INTENDED VICTIM
WOMAN KILLS HUSBAND IN
DOMESTIC DISPUTE
In the first case, one might expect that the
newspaper article reports that the victim is
applauded for having the presence of mind
and the ability to repel a recognizable men-
ace. Now, imagine that the first case is the
second case and the victim is not hailed as a
hero but is on trial for murder. Officially,
she is charged with homicide. She asserts
the legal claim of justification - that she
acted in self-defense against a man who
subjected her to physical abuse and threat-
ened her life. The reality is that she is on
trial for being a woman.
The trials of battered women who kill in
self-defense stand as a stark reminder that
the advances made against gender bias in
courtrooms are inadequate from the defen-
dant's standpoint. It is from her point of
view that we should analyze the impact of
sexism. Sex-based discrimination in these
trials exacts its greatest toll from the woman
on trial, even when it appears to be directed
against her lawyer, or a witness or a juror.
The defendant in such a case is certainly
in a better position today than that in which
she would have been a hundred or so years
ago. At that time, there would have been no
issue of sexism directed against her lawyer:
Holly Maguigan, who worked in NECLC's
Philadelphia office between 1975 and 1984, has
represented battered women homicide defen-
dants since 1979. She now teaches in the crimi-
nal law clinic at New York University School of
Law. The clinic's Battered Women's Criminal
Defense Back-Up Center assisted in the defense
of Karen Straw.
she could not have chosen to have a woman
defend her. She certainly could not have ex-
pected to be tried before a woman judge.
In Bradwell v. Illinois, (1873), the Su-
preme Court upheld a law denying women
the right to practice law. The concurring
justices explained their reasoning:
the natural and proper timidity and deli-
cacy which belongs to the female sex evi-
dently unfits it for many of the occupations
of civil life. [The] paramount destiny and
mission of woman are to fulfil the noble
and benign offices of wife and mother.
This is the law of the Creator.
Let us assume that proceedings in the
murder trial which was the subject of the
headlines will begin today. The defendant's
lawyer arrives early in the courtroom, dis-
rupting its all-deliberate-speed hum hardly
at all, goes to the defense table and takes a
seat to await the arrival of the defendant,
the district attorney and the judge. Imme-
diately, a court officer approaches the
table: Sorry, miss. You'll have to wait for
your lawyer before sitting here. We won-
der how such a comment, at such a mo-
ment, affects the lawyer. All too often, we
forget to wonder how it affects the defen-
dant.
Does a woman on trial for her life get the
help she needs from another woman when
people today demonstrate their continuing
expectation that her lawyer's sex evidently
unfits [her] for. . . the occupations of civil
life? Should she choose a woman to defend
her against the charge of failing, in a most
dramatic fashion, to fulfil what Justice
Bradley in Bradwell v. Illinois called the
noble and benign offices of wife and
mother?
Let us assume that the defendant and her
lawyer answer those questions with a re-
sounding yes and are prepared to move
on to jury selection.
Within the last quarter-century, the jury-
selection process would have resulted in
DECEMBER 1987
23](ViewImageLocal?handle=hein.journals/blorij20&div=10&collection=&method=preview&ext=.png&size=3)
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Women on Trial
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