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Lawtalk

Yale UNIVERSITY PRESS

Chapter One

In eighteenth-century English law a woman who killed her husband was not just a murderer, but a traitor. Just as every British subject was deemed to owe unqualified allegiance to the crown, so a wife or servant owed complete loyalty to the husband or master. Therefore, just as it was treason to attack the king or the government, it was treason of a sort for a wife to kill her husband or for a servant to kill his master. As William Blackstone, the great expositor of English law in that era, explained, in all of these offenses the criminal is an "inferior [who] so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of ... his superior or lord." Treason against the king—denominated high treason—was regarded as the worst possible crime, and the prescribed punishment was correspondingly grisly. (The sentences in particular cases varied, but typically included being hanged, cut down while still alive, and disemboweled—though the king could and often did reduce the penalty to mere beheading.) But the murder of a husband or master was not far behind. This was called petit treason (from the French petit, "small"—now often written petty in English). Whereas the penalty for mere murder was hanging, petit treason was punishable by burning at the stake.

Women have come a long way since then. The surge in awareness of the problem of wife beating in the 1970s (see RULE OF THUMB) led to the realization that there are times when killing one's husband is, if not exactly admirable, at least understandable. Lawyers for women charged with murdering their husbands began to raise as a defense what was referred to at first as the battered wife syndrome, later generalized to battered woman syndrome. The essence of the defense is that relentless physical, mental, or sexual abuse by a husband or lover was responsible for the conduct leading to his death. Depending upon the facts of the case and the state of the law in a particular jurisdiction, a defense of this type might be used to argue that the woman was driven to act irrationally (a temporary-insanity defense), that her judgment was impaired by extreme emotional disturbance (a diminished-capacity defense that would reduce the level of the crime), or that she reasonably concluded that the only way to save her own life was to kill the abuser (essentially a claim of self-defense). The frequency of news stories about women who were murdered by a former partner against whom they had obtained a legal order of protection shows that such fears can be well founded.

In the 1980s the battered woman syndrome defense increasingly found favor with courts, juries, and eventually governors. Within the space of two months in 1990 and 1991, the governors of Ohio and Mary land commuted the sentences of thirty-three women convicted of killing or assaulting abusive partners. Although the defense was controversial and by no means always successful, it inspired lawyers for defendants in other kinds of cases to mount similar kinds of defenses. But since defense lawyers must do the best they can with the facts they are given, a defense of this nature was sometimes raised in a case where, in the eyes of many observers, the facts were less than compelling or the defendant less than sympathetic.

One of the most famous of these cases went to trial in 1993: it was the case of Erik and Lyle Menendez, brothers who, at eighteen and twenty-one, had gruesomely slaughtered their multimillionaire parents at their home in Beverly Hills, and then managed to squander about a million dollars in the six months before their arrest. Their defense was that their father and mother, in various ways at various times, had abused them sexually and psychologically. At the trial the brothers testified that when they acted they believed that their parents were about to kill them to prevent them from disclosing this history of incest. The matter was tried in a joint trial before two juries—one for each brother. It was widely viewed as an open-and-shut case. But when the trial finally concluded the following year, the brothers' claims of parental abuse had sown enough doubt so that both juries deadlocked between convicting them of murder and convicting on a lesser charge of manslaughter. Not until 1996, after a retrial, were the brothers convicted of murder and sentenced to life in prison.

An equally celebrated case that arose in 1993 was that of Lorena Bobbitt, who became a folk hero in some circles when she reacted to what she described as a rape by her husband, John Wayne Bobbitt, by cutting off his penis while he slept, fleeing with it, and throwing it out her car window. (Amazingly, police found the penis in the general area where Lorena Bobbitt said she had thrown it, and surgeons reattached it in a nine and a half–hour operation.) Under the circumstances, both Bobbitts found it necessary to hire not only lawyers to defend themselves but also agents to manage interview requests and hoped-for book and movie offers. John Wayne Bobbitt's agency ultimately landed him a role in a pornographic movie in which he demonstrated what can be accomplished through microsurgery. Lorena Bobbitt's agency, Paradise Entertainment Corporation, for its part, released a statement—clearly guided by her lawyer—in which Lorena laid the groundwork for her temporary-insanity defense: "I was the victim of repeated emotional, physical and sexual abuse," she said. "Everyone has a limit, and this was beyond mine." In time, each of the spouses was tried for assaulting the other, and both were acquitted. In the first trial, against the husband, the jury was not convinced beyond a reasonable doubt that the sex on the fateful night was nonconsensual. But the jury in the second trial, against the wife, evidently was persuaded by her lawyer's argument that, as an abused woman, "Lorena Bobbitt believed she had no real means of escape.... In her mind, it was his penis from which she could not escape."

The Menendez and Bobbitt cases were the subject of obsessive media attention and vigorous public debate throughout the second half of 1993. In this atmosphere, abuse excuse was a catch phrase waiting to happen. The phrase was probably coined independently by numerous people. It appeared, for example, in a letter to the editor of the Dayton Daily News in December 1993. And the previous month, in a somewhat different context, an editor at the Chicago Tribune had captioned a letter to syndicated advice columnist Ann Landers, "Sex-abuse excuse too often a copout."

But it was Harvard law professor and media personality Alan Dershowitz who put this phrase on the linguistic map. In a hint of what was to come, Dershowitz dropped the phrase into a CBS network television interview on January 14, 1994, about the inability of the first Menendez jury to reach a verdict. Two days later, he released a syndicated column titled "The Abuse Excuse," discussing the "current rage among defense lawyers" for claiming a history of abuse as an excuse for violence, and concluding, "The popularity of the 'abuse excuse' poses real dangers to our safety and to the integrity of our legal system.... The time has come to place limits on testimony about excuses that are so subject to abuses."

The phrase caught on immediately. Within a fortnight, legal commentator Fred Graham could be heard on a syndicated television talk show speaking as if it were an established legal term: "Well, of course, it's a very trendy defense these days, Geraldo. It's called the abuse excuse." (Host Geraldo Rivera's lineup of guests for that episode illustrates the media frenzy at the time: it included a woman who had thrown acid over 69 percent of her husband's body, a man who had killed his wife with a punch to the head when she lunged at his genitals with a cavalry saber, a woman acquitted of murder after fatally shooting her abusive husband, and a female author who had become friends with John Wayne Bobbitt when he bought a copy of her book How to Satisfy a Woman Every Time and Have Her Beg for More.) Barely a week later, the phrase got a major boost when the ABC television network news show Nightline presented a "Nightline Town Meeting"—with Dershowitz as one of its guests—called "Is Abuse an Excuse?"

And the phrase was not limited to the pop u lar media. Within four days after that Nightline special "abuse excuse" made its way into a legal newspaper, and within four months it appeared in the journal of the American Bar Association itself. Although the public obsession with the issue has abated, the question of the extent to which past or ongoing trauma—whether in a war or in a family—should be considered as reducing or negating criminal culpability is an important topic in law, and the phrase abuse excuse has become a staple in law review articles on the subject. It remains a casual, slangy expression, however; it is never used as a legal term. Because the phrase has no specific legal meaning, it is almost never seen in judicial opinions, especially not in cases involving allegations of actual abuse, which are too serious for such dismissive language.

One appellate court in a different kind of case, however, was unable to resist a waggish reference to the phrase. In a sexual harassment case brought by a woman who had worked briefly as an assistant to the writing team for the popular TV sitcom Friends, the plaintiff asserted that the creative meetings she was required to attend were characterized by a pattern of stunningly crude and juvenile sexual talk and behavior. The defendants, including three of the writers, argued that this sort of locker-room banter and adolescent tomfoolery was an essential part of their job because it gave rise to many of their ideas for the often sexually oriented show. For example, one of the writers "admitted to pantomiming masturbation in the writers' room ... but asserted '[i]t's part of the creative process'"—prompting the obviously skeptical court to observe in a footnote, "Reich's statement gives new meaning to the term 'abuse excuse.'"

JEC

affirmative action

Affirmative action means doing something rather than doing nothing. It means taking steps to accomplish an objective instead of sitting on your haunches and hoping it will happen. If the goal is good and the means are not evil, affirmative action is a virtue. Yet in the context of efforts to end racial in equality, the concept has met with suspicion and resistance—not least in the Supreme Court.

Although at least one isolated occurrence of the phrase can be found as early as 1683 (in a rather convoluted theological discussion), the term affirmative action came into general use in the mid-nineteenth century; prior to that time the usual phrase was positive action. The phrase affirmative action proved particularly popular in legal discourse, and its use in the nineteenth century and beyond may even have originated there; it can be found in court cases as early as 1835. But it was not until the 1960s that the idea of taking positive steps to overcome the nation's centuries of discrimination against minorities and women became thinkable; before then, simply ending legal support for such discrimination was a distant dream.

The first step occurred in 1961, when President John F. Kennedy issued Executive Order 10925 relating to government contracts. The order required government contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." The individual responsible for the key phrase was Hobart Taylor Jr., the lawyer son of a wealthy black Houston businessman and political activist, who had become involved in the drafting at the behest of Vice President Lyndon Johnson. Taylor later explained, "I was torn between the words 'positive action' and the words 'affirmative action.' ... And I took 'affirmative action' because it was alliterative." It says much about the status of African Americans in those days that three years later, when Johnson (who had become president upon Kennedy's assassination a few months earlier) named Taylor to his White House staff, it was such a stunning advance that the city's major newspaper printed the story under the five-column headline "Negro Named Associate Counsel to Johnson." It is similarly emblematic of the place of women in America in those days that a story about Taylor's wife in the same newspaper the following month consisted of a large photograph with the headline "Cited for Chic" and a caption identifying her as "Mrs. Hobart Taylor Jr., wife of the executive vice chairman of the President's Committee on Equal Opportunity, ... wearing an at-home culotte of flowered French silk."

By the time the Civil Rights Act of 1964 was passed, broadly outlawing many forms of discrimination on the basis of race and sex, it was clear that the unfair advantages that had accrued to the white citizenry as a whole over the centuries could never be overcome without affirmative action aimed at lowering obstacles to advancement for blacks. As President Johnson stated in a commencement address at Howard University in 1965, "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'you are free to compete with all the others,' and still justly believe that you have been completely fair." Johnson therefore issued a new and stronger executive order (no. 11246) in 1965—expanded by a further order in 1967 to cover sex discrimination—not only calling for affirmative action in employment but also setting up an enforcement mechanism. Meanwhile, institutions of higher learning began to increase their black enrollment, and efforts to integrate public schools proceeded. At no time was it ever suggested that unqualified applicants should be chosen over qualified applicants; affirmative action was solely a device for enhancing representation of blacks in academia and in the workforce by increasing the number of blacks chosen from pools of qualified individuals.

Nevertheless, it took almost no time for whites to complain that they were being treated unfairly, and to mount court cases claiming that they were victims of "reverse discrimination." They averred that since they had not personally discriminated against blacks, they should not be made to yield any advantage to blacks, notwithstanding that their economic and educational advantages were the product of 350 years of violently enforced affirmative action in their favor. In his final sermon, delivered four days before his assassination, Martin Luther King Jr. described one aspect of that historical affirmative action:

In 1863 the Negro was told that he was free.... But he was not given any land to make that freedom meaningful.... And the irony of it all is that at the same time the nation failed to do anything for the black man—through an act of Congress it was giving away millions of acres of land [to whites] in the West and the Midwest.... But not only did it give the land, it built land-grant colleges to teach them how to farm. Not only that, it provided county agents to further their expertise in farming: not only that, as the years unfolded it provided low interest rates so that they could mechanize their farms. And to this day thousands of these very persons are receiving millions of dollars in federal subsidies every year not to farm. And these are so often the very people who tell Negroes that they must lift themselves by their own bootstraps.

(Continues...)

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Excerpted from Lawtalk by James E. Clapp Elizabeth G. Thornburg Marc Galanter Fred R. Shapiro Copyright © 2011 by Yale University. Excerpted by permission of Yale UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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