Aya Gruber

Zero-Tolerance Comes to International Law

It is difficult to engage from a theoretical perspective an advocacy piece that largely reads like a brief in favor of particular claim of law, namely, that a state’s failure to (vigorously) criminalize marital rape violates international human rights law. In a brief, the litigant pulls together various sources to prove the legal claim is correct. Opponents typically respond by cobbling together their own sources to undermine that claim. In their essay, Criminalizing Sexual Violence Against Women in Intimate Relationships, Randall and Venkatesh set out to prove that international human rights law, in fact, requires states to criminalize marital rape. I suspect there are international lawyers who can persuasively argue that international human rights law does not, in fact, require such criminalization.

A Provocative Defense

It is common wisdom that the provocation defense is, quite simply, sexist. For decades, there has been a trenchant feminist critique that the doctrine reflects and reinforces masculine norms of violence and shelters brutal domestic killers. The critique is so prominent that it appears alongside the doctrine itself in leading criminal law casebooks. The feminist critique of provocation embodies several claims about provocation’s problematically gendered nature, including that the defense is steeped in chauvinist history, treats culpable sexist killers too leniently, discriminates against women, and expresses bad messages. This article offers a (likely provocative) defense of the provocation doctrine. While fully acknowledging widespread gender inequity in society, the Article argues that the feminist critique may overestimate the provocation doctrine’s contribution to such inequality and underestimate its value to marginalized defendants. Provocation, like many legal doctrines, has a complex history. Further, the limited empirical evidence available appears to undermine rather than confirm assertions that the defense disproportionately burdens women and proves strategically vital to murderous men. Moreover, efforts to utilize criminal punishment to express an anti-masculinity, anti-violence message may, in the end, reinforce destructive masculine norms, exacerbate racial hierarchies, justify extant unequal power distributions, and, ironically, increase violence and suffering. In the end, the Article cautions that the feminist critique of provocation and similar progressive critiques of doctrinal leniency may unintentionally instantiate and entrench the punitive impulses that create and sustain mass incarceration.