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License to Kill / Men and women, crime and punishment.

July 2002

License to Kill
Men and women, crime and punishment.
by Cathy Young

Late one night in August 1997, a Tacoma, Washington, woman named
Lee Working called her estranged husband, Michael, and told him that
car had broken down, stranding her and their two preschool daughters
in a
wooded area on a military base. When Michael Working came to her aid,
turned out to be an ambush. Brenda shot him several times, hitting
him in
the arm and the shoulder. Then she beat him in the face with the
as he tried to wrench it from her hands and stalked him through the
for hours after he managed to get away.

Brenda Working's sentence for the attempted murder of her husband:
one day
in jail.

Admittedly, this was not the full extent of Working's punishment: She
received a separate five-year sentence for using a gun in the
of a crime. Yet the sentencing judge, U.S. District Judge Jack Tanner,
openly stated that he would have suspended that sentence too if it
had not
been mandatory under federal law. His reasoning was that Working had
depressed and fearful that her estranged husband would take away her
children in a custody battle.

In April the U.S. Court of Appeals for the 9th Circuit overturned the
sentence, ruling that Tanner had improperly departed from the
guidelines without adequate reasons. The case was sent back to the
court and reassigned to another judge. The 9th Circuit's ruling made
unusual explicit reference to gender bias, stating that Tanner "would
unlikely to set aside considerations of Working's sex."

Despite the eventual outcome, many would say the Working case
a pervasive pattern in the criminal justice system of gender-based
leniency toward women. This has become an article of faith among men's
rights activists. In his 1993 book The Myth of Male Power, Warren
asserts that "twelve distinct female-only defenses allow a woman who
commits a premeditated murder to have the charges dropped or

This sensational claim is seriously exaggerated. Of the 12 items
listed by
Farrell, only three -- insanity pleas based on premenstrual syndrome
postpartum depression and self-defense or insanity pleas based on
woman syndrome -- can accurately be called "female-only defenses."
even these defenses rarely succeed.)

The rest of Farrell's list consists of factors that contribute to
more-lenient treatment of women, from stereotypes that make women less
likely suspects to protective husbands standing by wives who have
committed violence against them or their children.

Nonetheless, the pattern does exist. Two Justice Department studies
in the
late 1980s found that male offenders were more than twice as likely as
women charged with similar crimes to be incarcerated for more than a
and that even allowing for other factors, such as prior convictions,
were more likely to receive a light sentence.

The disparities are especially striking in family murders, the
primary form of
homicide committed by women. A Justice Department study of domestic
homicides in 1988 found that 94 percent of men who were convicted
of (or pled guilty to) killing their spouses received prison
sentences, but
only 81 percent of the women did. The average sentence was 16.5 years
for husbands and a mere six years for wives.

Some of the difference was due to the fact that more of the women had
been "provoked" -- that is, assaulted or threatened prior to the
But when there had been no provocation, the average prison sentence
seven years for killer wives and 17 years for killer husbands.

Beyond the numbers, the contrast between the treatment of male and
defendants can be shocking in individual cases.

In 1995 Texas executed Jesse Dewayne Jacobs for a murder that, by the
prosecutors' admission, was committed by his sister, Bobbie Jean
Hogan -- who had gotten Jacobs to help her abduct her boyfriend's ex-
and had actually pulled the trigger -- served 10 years in prison.

She was convicted only of involuntary manslaughter after her lawyers
managed to persuade the jury that the gun went off accidentally.

Old-fashioned chivalry undoubtedly plays a role. "Women and men do
separate places in the collective psyche of society," Jonathan Last
approvingly in The Weekly Standard in 1998, shortly after the
execution of
ax murderer Karla Faye Tucker. "Because society has a low tolerance
seeing them harmed, women -- even criminals -- have traditionally been
treated differently by the justice system. Differently, but still, at
with justice."

In recent years, this chivalry has declined. Yet while it is no longer
acceptable to argue that female criminals are due special
because they're women, many feminists' insistence on seeing women as
victims of patriarchy sometimes has the same effect.

Most anti-domestic violence activists, for instance, cling to the
that women kill only in response to male violence. The battered
clemency movement has obtained pardons for female murderers who, as
subsequent investigations found, had very flimsy claims of abuse and
probably had been driven by "masculine" motives, such as jealousy.

Other cases never go to trial. In Brooklyn in 1987, Marlene Wagshall
her sleeping husband, Joshua, in the stomach, crippling him for life,
after finding a photo of him with a scantily clad woman. Wagshall was
charged with attempted murder, but on the basis of her uncorroborated
assertion that her husband had beaten her, District Attorney Elizabeth
Holtzman, a strong champion of women's rights, let her plead guilty to
assault with a sentence of one day in jail and five years' probation.

Even when feminists do not actively defend violent women, they hardly
speak up against inappropriate leniency toward female defendants.
they refuse to admit that such leniency exists -- perhaps because it
be heresy to concede that "patriarchy" has sometimes worked in women's
favor -- and prefer to focus on real or mythical instances in which
justice system treats women more harshly. (Battered women's advocates
promoted the wholly fictional factoid that a woman who kills her mate
sentenced to an average of 15 to 20 years in prison, while a man gets
to six years.)

As a result, if a man commits a violent crime against a woman and
gets off
lightly, an outcry from women's groups often follows. If it's the
way round, the only vocal protests are likely to come from the
family and from prosecutors.

The Working case, like the Wagshall case, received minimal publicity.
Imagine the reaction if a judge had said publicly that a man who had
ambushed and shot his estranged wife should have been spared prison
because he was depressed over the divorce.

There are feminists, such as Patricia Pearson, author of the 1997 book
When She Was Bad: Violent Women and the Myth of Innocence, who find
feminist paternalism toward women no less distasteful than the
kind. They argue that in the long run, excusing women's violence on
grounds of emotional problems may undercut women's ability to be seen
capable workers and leaders.

That may or may not happen. But even if women stand to lose nothing
the new double standards, any self-respecting feminist should still
them in the name of equal justice.

Contributing Editor Cathy Young writes a column for The Boston Globe.
is the author of Ceasefire!: Why Women and Men Must Join Forces to
True Equality (Free Press).

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