Become a Patron

Camille A. Nelson

Permission Requested:   Camille A. Nelson, Breaking the Camel's Back: A  Consideration of Mitigatory Criminal Defenses and Racism-related Mental Illness, 9 Michigan Journal of Race and Law 77-147 (Fall 2003) (314 Footnotes)

The following passage is from what the United States Court of Appeals for the Seventh Circuit deemed an X-rated decision. It is taken verbatim from one of a series of letters sent to a Black family in Illinois:

       You filthy fag sick garbage puke slime vomit mutt sooner mother fucker. . . . I wishes a vicious death upon your scum of the earth head. You watch your back you faggott bastard less you receive five bulletts in your spine. Your big black ugly maggott witch wife should be hung or burned at the stake like witches used to you Fat Fuck Motherfucker. If I weren't a child of God I'd catch you coming out of UPS and blow your head to dust particles. Nevertheless your wife is in store for a very dramatic/harmful incident. Before it is over that big black scorcerer will pay a debt to society like no other black bitch like her on earth.

      The above quote from United States v. Bohanon attests to the power of words. Coupling such language with conduct makes its import even greater. The intentional use of such words to injure marginalized persons has the potential to elicit a physiological response, generate emotions, and lead to responsive actions. This potential remains largely unrecognized by the American legal system. While in the United Kingdom, Australia, and Canada the courts or legislatures acknowledge the provocative power of words and symbols, American jurisprudence attempts a careful balancing between, on the one hand, the provocative capacity of words and symbols in the absence of conduct and, on the other hand, protecting the First Amendment right to free speech. Where relevant, the mental health effectsstemming from racist abuse and violence should form part of the deliberations in a criminal trial. The mitigatory defenses, in particular, have a role to play in allowing due consideration of the psychological impact of racism.

       In the lexicon of racial abuses, there are many words and phrases capable of inflicting physiological and mental injury. Even absent accompanying conduct, the use of some words can inflict deep wounds based on identity, be that identity based on race, gender, culture, religion, or sexuality. The excerpt from the X-rated decision outlined above is but one example of the violent and abusive words that many Americans are exposed to from an early age. The perpetrators who deal in this vitriol and its symbolism (such as racist graffiti or anti-Semitic imagery) are well aware of its powerful potential--they select and deploy the imagery with care to assure maximum damage to their victims.

      Hateful speech and racially violent symbolism, such as that in Bohanon, are symptoms of social processes. They are the legacy of a past of racialized nation-building. The First Amendment is designed to protect political speech of all types, yet speech that infringes on public order (such as bomb threats, incitements to riot, obscene phone calls, and “fighting words”) can be prohibited in the interest of the common good. Moreover, even absent a constitutional reclassification of hate speech and racially violent symbolism as fighting words, there is conceptual space in the criminal law to consider the impact-driven legal significance of such racial abuse. Examination of the defenses of provocation, extreme emotional disturbance, and diminished capacity might prove informative and provide an equitable point of departure when informed by the social sciences. Specifically, the elasticity of the reasonable person standard in the defense of provocation, the recognition of trauma in the extreme emotional disturbance defense, and the allowance for impairment in diminished capacity provide opportunities to consider the role of racism in criminal culpability determinations.

      While the abusive letter reproduced above undoubtedly engendered both physiological and mental effects on its intended victims, if the family members had responded with violence to such abuse, they would have been denied access to criminal law defenses. It is, however, possible to recognize such speech and symbolism as a form of racial violence that, like all forms of violence, inflicts both physical and mental damage upon its victims and might lead to responsive violence. It is this point--the prospect of responsive violence--from which this Article departs.

      This article will examine the concept of racist words, symbols, and actions that are used as weapons to “ambush, terrorize, wound, humiliate, and degrade,” as psychological and physiological violence. The implications of such violence are relevant to several affirmative defenses and, indeed, to the initial formulation of mens rea. The historical and contextual legacy that is intentionally invoked by the utilization of racialized violence is what separates the racial epithet or racially violent symbolism from other distressing insults and slurs. While First Amendment protection extends to offensive or insulting speech, the mental and physical sequelae of such speech, even absent conduct, are appropriate considerations for the criminal law, as such speech is racial violence itself and may lead to the responsive physical violence that is beyond the protection of the First Amendment.

      Words used as weapons to inflict maximum damage upon racially designated victims should be distinguished from violent speech in the abstract as such targeted utterances intentionally draw upon a history of racist terrorism. In the face of such violence, courts should respond in one of two ways: prohibition or regulation of such speech or, as this Article will argue, acknowledgement of the mitigatory potential of provocation, diminished capacity, and extreme emotional disturbance for victims of racialized violence. These defenses have been effectively used by jealous husbands, homophobes, and those claiming the sanctity of their cultural practices. Accordingly, there is no tenable basis to deny these defenses to persons of color who are provoked to respond to racialized violence. If a victim, such as the recipient of the above quoted letter, responds by self-help to the racialized violence inflicted upon her, legal recognition of the material impact of such racial terrorism, and the violence done to a victim so abused, is in order for purposes of mitigated sentencing.

      Part I of this Article explores the salience of “critical psychology,” focusing on the mental, and to a lesser extent the physiological, implications of exposure to racism. Part II explores the criminal law doctrines of extreme emotional disturbance, provocation, and diminished capacity as substantive areas capable of incorporating critical psychology. Part III analyzes the pros and cons of an infusion of the critical psychology into the criminal law for communities of color. This part focuses on the potential pathologization of Blacks as “mad” or “bad,” as well as considerations of intersectionality and multidimensionality.