Rule and Exception in Criminal Law (Or, Are Criminal Defenses Necessary?)
![handle is hein.journals/tulr82 and id is 265 raw text is: Rule and Exception in Criminal Law (Or, Are
Criminal Defenses Necessary?)
Janine Young Kim*
A great deal of scholarship in the criminal law assumes that the law exists in order to
prevent harm, yet largely ignores how that notion may inform the law.s form and function. This
Article argues that the harm-prevention principle is surprisingly useful in conceptualizing the
structure of the criminal law, particularly the relationship between offenses and defenses. Its
central hypothesis is that while defenses are olten thought of as exceptions to the rules
embodied by offenses, recognition of the harm-prevention principle reveals a much more
nuanced picture of the law in which some defenses can be understood to further the rules rather
than signify exceptions. To illustrate this point, the Aticle analyzes both established defenses
like self-defense and insanity as well as innovative defensive claims made by battered women
and members ofcultura minorities.
I. INTRODUCTION ............................................................................. 247
II. THE ADVENT OF NEW DEFENSES ................................................ 252
A. The Cultural Defense ......................................................... 255
B. The Battered Woman ' Defense ......................................... 261
III. ORGANIC OR EXCEPTIONAL? THE PERSUASION PROBLEM ........ 267
IV OFFENSE AND DEFENSE ............................................................... 273
V THE CuLTURAL DEFENSE AND THE BA1rERED WOMAN'S
D EFENSE (REDUX) ....................................................................... 288
A. The Cultural Defense asanException .............................. 289
B. The Battered Woman Defense as an Exception ............. 292
V I. C ONCLUSION ................................................................................ 295
I. INTRODUCTION
We take the criminal law for granted. We imagine that society-
whether as a political institution or as an aggregation of individuals-
has always punished wrongdoers and always will, because we expect
that there will always be wrongdoers among us.' Although Nietzsche
* © 2007 Janine Young Kim. Associate Professor of Law, Southwestern Law
School. B.A. 1995, M.A. 1996, Stanford University; J.D. 1999, Yale Law School. Many
thanks to Ron Aronovsky, Russell Covey, Michael Dorff, Kim Ferzan, Matthew Parlow,
Robert Pugsley, Gowri Ramachandran, Angela Riley, Lawrence Rosenthal, Kelly Strader, and
Robert Weisberg for their insights on earlier drafts.
I. Blackstone long ago observed that [t]he infirmities of the best among us, the
vices and ungovernable passions of others, the instability of all human affairs, and the
numberless unforeseen events, which the compass of a day may bring forth render the
247](ViewImageLocal?handle=hein.journals/tulr82&div=13&collection=&method=preview&ext=.png&size=3)
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Rule and Exception in Criminal Law (Or, Are Criminal Defenses Necessary?)
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