Conclusion
Murder should never be condoned nor encouraged. Like many scholars who have analyzed provocation, extreme emotional disturbance, and diminished capacity defenses, I too recognize the need for criticality of their genesis, subordinating potential and rampant misuse.
In addition to concerns with mitigating defenses stemming from the definitional concern over the unreasonableness of murder, some of the critiques of these defenses stems from their homophobic or sexist application so as to justify or excuse murder fueled by homophobic rage or panic, misogyny and “face-saving” veiled as cultural practices. If these defenses are to be abolished, then so be it--this is indeed a tenable option in light of the homophobia and femicide, that theses defenses have supported. Given the power of patriarchy and heteronormativity however, it is doubtful whether defenses such as these, which have been so effectively deployed to disempower women and gay men, will be quickly discarded. Indeed, in the arsenal of the sexist and the homophobic, or just the plain-old desperate attorney, they are the defense strategy of choice as they resonate with the “majority” when a woman has allegedly been adulterous, or when a man has allegedly “hit-on” another man.
While it might seem inappropriate in the context of a death to invoke the logic of “what's good for the goose, is good for the gander,” there is a simple equality principle inherent in such “ganderism.” Formal equality, the most basic conceptualization of equality, demands equal treatment for all. The simplicity of “tit for tat” or “an eye-for-an-eye” logic demands that claims by persons of color to access these, admittedly corrupted, defenses be seriously considered. Since these defenses are susceptible to cooptation for subordinating purposes, harnessing the defenses with the normative goal of racial justice is an alternative deserving of reflection--cooptation for liberatory purposes, under principles of formal equality, should be similarly achievable.
If persons of color claiming access to these defenses on the basis of critical psychology, racist abuses, or uncontrollable rage are to be denied mitigated sentences, then an informed carefully articulated doctrinal differentiation is demanded; a differentiation which squarely addresses the disparate application of these defenses in limiting access to a few, thereby privileging the privileged at the expense of others, namely women, people of color and the gay, lesbian, bisexual, and transgendered communities. In the absence of an explanation delineating the confines of the operation of these defenses, the emancipatorary potential of these defenses should be creatively utilized by able defense counsel to further the interests of their marginalized clients. Why not throw these defenses, infused with critical psychology where appropriate, into the mix, as it currently exists?
As stated elsewhere, the ideal approach to the provocation, extreme emotional disturbance and diminished capacity defenses might be a conscious and informed application which prevents utilization of these defenses in a manner that itself works an equality injustice. In other words, pro-equality parameters might be articulated around the defenses such that the margins of their operation do not blur into marginalization and oppression on the basis of a particular jurisdiction's protected equality grounds such as race, gender, sex, religion, creed, color, class or sexual orientation. These defenses would not, therefore, be applicable if the outcome of their mitigatory potential would be to further subjugate women, if homophobia would be sanctioned, or if racism against traditionally marginalized communities would be legitimized, for instance. In this way, the application of the defenses discussed above would be tethered to the enumerated grounds of protection in a given jurisdiction's equality guarantees and further the interests of the historically disadvantaged. Such quests for equality are not within the exclusive domain of constitutional law--rather the law, in all its glorious manifestations, should be harnessed to promote justice. The criminal law affirmative defenses discussed above might, with the infusion of relevant critical psychology, provide one such opportunity to achieve the ends of justice.
[a1]. Assistant Professor, Saint Louis University School of Law. B.A. 1991, University of Toronto; LL.B. 1994, University of Ottawa; LL.M. 2000, Columbia Law School; J.S.D. Candidate, Columbia Law School.
