Criminal Justice Outcomes in Intimate and Non-intimate Partner Homicide Cases

5. Discussion and Conclusion (cont'd)

5.2 Assessing the role of stereotypes and interpersonal violence

Criminal law recognizes that there are different degrees of culpable homicide and therefore, there is variation in the degree of harm or accused culpability in homicide cases along a number of dimensions. Determining how to assess whether homicides (and other types of violence) are similar in both a social and a legal context (and, thus, warrant similar punishments) as well as what factors may be important when making such comparisons remains an issue. While this study was able to consider a variety of factors that may determine different degrees of harm or culpability, sufficient detail was not available for analysis on three important legal variables – premeditation, provocation and intoxication. If, as Lundsgaarde (1977) argues, the way in which criminal justice actors differentiate between lawful and unlawful homicide stems from the custom and/or culture within which such legal decisions are made, then, so too do images of what is a premeditated crime, what constitutes victim provocation, or what degree of intoxication ought to reduce the culpability of an accused. The question that needs to be addressed in future criminal justice research, then, is what are reliable indicators of these variables and how can this data be systematically collected in future studies?

Traditionally, data on these legal variables has been largely absent from empirical research on the criminal justice process despite the fact that they play an integral role in the processing of violent crime. Two related reasons for this may be that, first, there is little guidance about how we should measure these variables (i.e. should social science indicators adhere to legal notions of what is meant by these factors and, if not, what are some valid indicators that can be used by researchers) and, second, the number of obstacles that are often faced when attempting to collect information about these variables, including the amount of time required to collect detailed information for individual cases. Whatever the reason, criminal justice researchers need to begin to search for more systematic ways to collect this data, not only because of the legal relevance of these factors, but because of the way in which these concepts have become associated with common stereotypes about interpersonal violence.

Recall that research has shown that crimes between intimates are more often perceived to involve some degree of victim responsibility than crimes that occur between non-intimates (Rapaport, 1991; Riedel, 1987; Wolfgang, 1957). At one end of the continuum of victim responsibility is the legal notion of provocation that can act to mitigate the culpability of an accused, leading to more lenient punishments (see Miethe, 1987; Williams, 1976). If intimate violence is more often perceived to be victim provoked, then such cases may be more likely to benefit from this defence. But is it the case that victim provocation is more likely in cases of intimate partner homicide compared to other types of homicide or does this represent a common stereotype that exists both in society and within the criminal justice system that has yet to be supported by research? To answer this question, one first needs to decide what constitutes victim provocation and, then, to develop measures that allow for consistent data collection to document whether provocation is more common in violent incidents that occur between intimates. Such a goal may be difficult, however, given that the legal notion of provocation is one of the most controversial within criminal law with the result that there is little agreement as to what should constitute provocation. To date, there has been no systematic examination of the validity of this and other stereotypes that surround intimate violence and this is problematic given the potential role of these stereotypes in framing expectations about and responses to violent crime. Two additional examples illustrate this point further.

Conceptualizing intent and premeditation

Two of the most critical distinctions in law related to homicide are, first, the difference between murder and manslaughter and, second, the difference between first- and second-degree murder. More specifically, it is generally the presence or absence of the specific intent to kill that distinguishes between murder and manslaughter and, within the category of murder, it is often the presence or absence of premeditation (i.e. planning and deliberation) that often determines whether an accused will be charged with first- or second-degree murder. Simply put, if a homicide is premeditated, it is seen as the worst kind of killing in criminal law. The rationale for this distinction is that there is an added "moral culpability to a murder that is planned and deliberate that justifies a harsher sentence…by virtue of planning and deliberation with relation to the taking of a human life" (Grant et al., 1998: 7-8; s.214(2), s.231(2) CCC). The meaning of the terms ‘planning and deliberation’ has been the subject of extensive discussion in case law, but has been absent in criminal justice research that has sought to understand why certain sanctions or punishments are imposed in particular cases. Why are intent and premeditation important in understanding how intimate partner and non-intimate partner homicides are treated in criminal law?

Recall that killing out of anger or some other strong emotion can often mitigate an accused person’s culpability because his or her emotion is assumed to undermine their rational capacity for planning and deliberation. As a result, criminal justice actors may treat ‘hot-blooded’ crimes more leniently because offenders are assumed to lack the ability to plan or deliberate or, at the very least, to form intent (Rapaport, 1994). Because hot-blooded crimes (often referred to as ‘crimes of passion’) are often seen to be synonymous with killings that occur between intimate partners, those cases may be treated more leniently as a result. The important question, then, is whether intimate partner homicides are more ‘hot-blooded’ than other types of homicide and, second, whether there is less evidence of premeditation in such cases as a result. To date, there has been no systematic examination of these issues although feminist theorists and researchers have long challenged the stereotype of intimate violence as acts that arise solely out of passion or anger. Related to this, one qualitative Australian study showed that "the majority of men who kill their wives have given careful thought to the murder they are going to perform…Many husbands who kill their wives know exactly what they are doing, and if anything express a sense of relief once the goal, the wife’s death, has been attained" (Polk, 1994: 193). Further, while the degree of intent varied, this study found that in the majority of cases involving men who killed their female intimate partner, there was "some clear element of prior planning in the events leading up to the death" (Polk, 1994: 31). Therefore, an important consideration for future research is how the legal notion of intent or, at the very least premeditation, might explain the differential treatment of intimate and non-intimate partner homicide.

What is ‘too intoxicated?’

Media coverage of the Sheppard case in Prince Edward Island reported that the residents there were upset by the reduction in charge from second-degree murder to manslaughter (DOJ, 2003). This decision was made, however, because criminal justice decision-makers believed that it would not be possible to secure a conviction of murder because the offender was too intoxicated to form intent (DOJ, 2003). According to Grant et al. (1998), "the criminal law has traditionally had a rather mixed reaction to the presence of alcohol or drugs" (p. 6-28) with self-induced intoxication generally not appearing to be a mitigating factor (DOJ, 2003). For criminal justice researchers who want to better understand the criminal process, questions related to intoxication and how it is perceived both legally and culturally become important. For example, what does it mean to be ‘too intoxicated’ in criminal law? In other words, what threshold of intoxication is required to preclude an accused person’s ability to form intent? Related to this, how do researchers measure the level of intoxication of the accused? Where do researchers get information on an accused person’s level of intoxication? Are there cultural expectations about what types of behavior might be ‘excused’ by one’s level of intoxication and how might those expectations play out in the criminal justice system based on the type of victim-accused relationship?

In summary, prior research has shown that various types of victim-accused relationships elicit ‘crime scripts’ about violent incidents and those individuals involved that may lead to more lenient treatment of particular offenders (Miethe, 1987; see also Sudnow, 1965). As already noted, this may be a problem if little systematic research has actually examined the validity of these scripts (or related stereotypes) in relation to intimacy and violence because of their potential impact on criminal justice decision-making. The difficulty in doing such research again stems from the absence of such information in the types of official documents that researchers generally use when collecting data. In addition, variation in the amount and type of information systematically noted in official documents for individual cases means that different types of information will be available for some cases, but not for others. As a result, systematic and reliable comparisons are not always possible due to missing data. Again, this is largely due to the fact that the collection and production of documents for criminal case files do not occur for the purpose of criminal justice research. As such, new data collection techniques or methodologies need to be incorporated to examine the criminal processing of cases and, again, this involves increased collaboration between criminal justice actors and researchers.

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