Victim or Vamp - Images of Violent Women in the Criminal Justice System


VICTIM OR VAMP? IMAGES OF VIOLENT
WOMEN IN THE CRIMINAL JUSTICE SYSTEM

CHIMENE L KEITNER*

Why are our bodies soft and weak and smooth,
Unapt to toil and trouble in the world,
But that our soft conditions and our hearts
Should well agree with our external parts?

-Kate, The Taming of the Shrew, Act V. Sc. II

The feminist agenda is not about equal rights for women. It is
about a socialist, anti-family political movement that encourages
women to leave their husbands, kill their children, practice
witchcraft, destroy capitalism and become lesbians.

-Pat Robertson, 1992 Christian Coalition fundraising letter

I. INTRODUCTION

The uncritical resort to sex-role stereotypes pervades the trials,
sentencings, and media reactions to women who receive the death penalty.
Although ideas of sex-appropriate behavior influence innumerable aspects
of social relations, their influence in the criminal justice setting can be
particularly invidious. In a given trial, a woman defendant's failure to
conform to traditional notions of womanhood may lead judges and juries to
believe that she is more likely to have committed the offense with which
she is charged, to impute a higher degree of mens rea to her criminal action,
or to condemn her more harshly for criminal behavior. On a general level,
the condemnation of women who, in addition to committing criminal acts,
also transgress other sex-role stereotypes, reinforces ideas of deviance and
normalcy that can confine women to traditional roles of passivity and
helplessness.

. D.Phil., Oxford University, 2001; J.D. Candidate, Yale Law School. My thanks
to Reva Siegel and Judith Resnik for helpful suggestions on drafts of this Article; my thanks
also to the office staff of the Volusia County Felony Department for their friendliness and
assistance.



Victim or Vamp?

While sex discrimination is increasingly recognized as a pervasive
feature of many societal institutions and practices, its full range and
implications have yet to be charted. The critique of sexism in the criminal
justice system tends to be localized to certain arenas, such as the law of rape
and domestic violence. Other features of the system, such as the gender
segregation of prisons and the widely disparate incarceration rates for men
and women, draw relatively little critical attention by comparison. The
widespread association of criminality-and especially violence-with men
facilitates this oversight, as the naturalization of "male" and "female"
insulates certain gender-related disparities from scrutiny. With this in mind,
it is important to investigate the ways in which sex stereotyping and gender
bias affect the indictment, conviction, and sentencing of women.1

This article focuses on one aspect of this too-often hidden story: the
elements of gender bias in capital punishment, and how these play
themselves out in broader societal understandings and practices surrounding
the use of violence by women. The symbolic embodiment of justice in a
female figure belies the fact that the majority of law-makers, law-enforcers,
law-interpreters, and law-breakers are male.2 The masculinist assumptions
embedded in our criminal justice system3 mirror and reinforce paradigms of
social normalcy and deviance. While more men are convicted and
incarcerated than women, this phenomenon itself reinforces the image of
the "criminal woman" as "doubly deviant," and even "doubly damned."4

The answer is not to incarcerate more women just for statistical equality,
but rather to discourage the destructive perpetuation of sex-role stereotypes
by the organs through which criminal justice norms are articulated and
promulgated, including the, the bar, bench, and media.

This Article looks at the portrayal of women on death row by
lawyers, judges, and journalists. More specifically, it examines the

Two recent contributions to this area of study are Elizabeth Rapaport, Staying
Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women's
Capital Cases 4 Buff. Crim. L. Rev. 967 (2001) and Elizabeth Schneider, Battered Women
& Feminist Lawmaking (2000).

2 Bureau of Justice Statistics indicate that, in 1991, 5% of state prison inmates and

8% of federal prison inmates were women. The life chances of going to prison are 9% for
men, compared to 1.1% for women. Women accounted for 22% of all arrests in 1998, and
women accounted for 14% of violent offenders, based on self-reports of victims of violence.
U.S. Department of Justice, Bureau of Justice Statistics, Criminal Offenders Statistics
http://www.ojp.usdoj.gov/bjs/crimoff.htm (last modified Nov. 29, 2000).

3 See generally Stephen J. Schulhofer, The Feminist Challenge in Criminal Law,
143 U. Pa. L. Rev. 2151, 2151 (1995) ("[C]riminal law is, from top to bottom, preoccupied
with male concerns and male perspectives.").

4 Ann Lloyd, Doubly Deviant, Doubly Damned: Society's Treatment of Violent
Women 36 (1995); see Frances Heidensohn, Women and Crime 112 (2d ed. 1995) (citing C.
Lombroso & W. Ferrero, The Female Offender 152 (1895) (referring to a female offender as
a "double exception")).

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Columbia Journal of Gender and Law

representation of the four women who were on Florida's death row in
August 2000: Ana Maria Cardona, Andrea Hicks Jackson, Virginia
Larzelere, and Aileen Wuornos. The documents indicate a widespread
condemnation of female violent offenders from a range of ethnic
backgrounds (Latina, African-American, and Caucasian) as emblems of the
disruptive potential of all women who challenge sex-role boundaries. In this
fashion, the "othering" of convicted women, and especially of women
sentenced to death, exhibits a narrative feature not available in justifications
for executing men. Experience indicates that all criminals sentenced to
death are "othered" in certain respects, and even demonized and
dehumanized as part of a ritual of social retribution and purification.
However, violent women have committed a double transgression. Their
violation of sex-role boundaries provides an additional, and often central,
focus for condemnation in the courtroom and the media. This emphasis, in
turn, supports a familiar normative framework in which society prohibits
the use of violence by women in a range of ordinary and extraordinary
situations.

On the one hand, the association of non-violence with women may
be constructive in some areas, for example in the efforts of women at
various points in history to promote national and international peace
movements.5 On the other hand, these entrenched assumptions socialize
women such that they are less likely to use violence in confrontations with
intimates or strangers and exacerbate women's feelings of vulnerability and
fear. Anecdotal evidence suggests that women in countries whose armed
forces provide combat training to both men and women are less likely to be
targets of assault by male compatriots, who know that women are
physically and psychologically prepared to respond in kind.6

The demonization of violent women in American society illustrates
one way in which a country's criminal justice system, including both its
formal and informal components, constructs and reinforces norms of
appropriate behavior-norms that encompass more than the proscribed acts
at issue in a given trial.7 In this article, I argue that the social coding of
criminal violence by women as deviant, rather than simply blameworthy or
even reprehensible, goes hand in hand with normative restrictions on
appropriate female aggression, especially physical aggression, in other
spheres, ranging from defense of the country in military combat to self-
defense in situations of assault.

5 See, e.g., Michael Henderson, All Her Paths are Peace: Women Pioneers in
Peacemaking (1994); Mercedes Randall, Improper Bostonian: Emily Greene Balch, Nobel
Peace Laureate (1964). For current efforts, see the website of the Women's International
League for Peace and Freedom (WILPF), at http://www.wilpf.int.ch/-wilpf/.

6 Author's conversations with Israeli and Eritrean colleagues.

7 See Lawrence M. Friedman, Law, Lawyers, and Popular Culture, 98 Yale L.J.
1579, 1594 (1989) (describing a trial as a "boundary-maintaining device that broadcasts and
reinforces social norms").

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Victim or Vamp?

The article proceeds in three parts. Part I sets out the factual
predicate for the subsequent analysis, describing the violent acts and
criminal trials of four women sentenced to death in Florida courts. These
women's crimes represent a cross-section of crimes for which women have
received the death penalty in the United States.8 Ana Maria Cardona was
sentenced to death for beating and murdering her three-year-old son;
Andrea Hicks Jackson was sentenced to death for shooting and killing a
police officer; Virginia Larzelere was sentenced to death for arranging her
husband's murder; and Aileen Wuornos was sentenced to death for the
murders of six men, each of whom had picked her up as a prostitute. A
survey of the trial transcripts, appellate opinions, and media reports in these
cases9 illustrates the ways in which stereotypes of appropriate female
behavior are used by lawyers, judges, and journalists to portray violence by
women as particularly threatening to the social order, and thus particularly
deserving of censure.

Part II draws out the implications of these observations, exploring
the uses and abuses of sex-role stereotypes in the condemnation or
legitimation of violence by women. First, it addresses the contention that
women receive more lenient treatment at the hands of the criminal justice
system than men, and suggests that this so-called "chivalry thesis"
exemplifies a societal preoccupation with controlling women. Second, it
examines the battered woman's defense as a contemporary manifestation of

8 Available statistics show that the fifty-two women on death row in the United
States as of Jan. 2001 were there for the following crimes:

murder of a non-relative female 13

murder of a non-relative male 04

murder of multiple adult non-relatives 07

murder of non-relative child(ren) 05

murder of own child(ren) 08

murder of husband and children 02

murder of husband by hired killer 08

murder of husband directly 04

Information available from Death Penalty Information Center, Case Summaries for
Current Female Death Row Inmates (last visited May 27, 2001), at
http://www.deathpenaltyinfo.org/womencases.html; see Victor L. Streib, Death Penalty for
Female Offenders: January 1, 1973 to December 31, 2000 at
http://www.law.onu.edu/faculty/streib/femdeath.htm (last modified Feb. 2001).

9 The trial transcripts for the Cardona, Jackson, and Larzelere cases are not readily
available, but the appellate opinions contain much of the basic information, as do the
surrounding media reports and interviews. These sources offer a sufficient basis to construct
an analytic framework that can provide a foundation for further study. The author consulted
the transcripts from the first Wuornos trial during a trip to Volusia County, Florida.

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Columbia Journal of Gender and Law

chivalry, exploring the broader societal implications of excusing women by
denying their moral agency. Following the case studies of women sentenced
to death for acts of violence in Part I, Part II seeks to evaluate narratives of
female victimization and narratives of female agency from a feminist
perspective, that is, one that requires the incorporation of women's
perceptions and experiences into the behavioral norms and value judgments
of society as a whole.

Part HI takes this inquiry one step further, hypothesizing a
connection between social attitudes towards violence by women and the
subordination of women through the internalization of fear. The refusal to
empower women as equal participants in the legitimate use of force to
protect the state, the construction of self-defense laws that fail to recognize
the circumstances and types of force that women are likely to use to protect
themselves, and the persistent and pervasive contrast between female
helplessness and male aggression in popular imagery and rhetoric, all have
profound and disturbing implications for a society that envisages itself as
moving towards gender equality. The temptation for defense lawyers to
deploy stereotypes of female victimization in defending women who use
violence should be weighed against the broader social consequences of
denying women moral agency in the use of physical force. Demonizing
violent women in criminal prosecutions is no more empowering than
victimizing them, and also contributes to subordinating women through
fear. In the longer term, normalizing some uses of violence by women, i.e.,
combating the double standard in the use of violence by women and men,
might be one way to help reduce the incidence of violence against them.
We, as legal scholars, practitioners, and advocates, must continue
promoting awareness of and sensitivity to the detrimental effects of resort to
sex-role stereotypes in the administration of criminal justice, and to the
ways in which these interfere with the goals of ensuring individual justice
and creating a society less burdened by gender inequalities perpetuated by
inflexible ideas about sex-appropriate behavior.

II. WOMEN ON FLORIDA'S DEATH ROW

Focusing on the cases of women sentenced to death for committing
violent crimes provides a controlled setting in which to examine the use of
sex-role stereotypes by lawyers, judges, and journalists in narratives of
female violence. The cases of the four women on Florida's death row offer
a particularly relevant focus for several reasons. First, as noted above, their
crimes illustrate the range of crimes for which women have been sentenced
to death in the United States. These women all used violence, but each did
so in different situations and against different targets. What unites these
cases is the fact that the defendants are women, a common feature not lost
on commentators who have referred to this group as Florida's "exclusive

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sorority."' 0 Finally, examining cases from a single state keeps constant
certain background variables, including the laws on aggravating and
mitigating factors in sentencing, the appellate structure of the courts, and a
range of intangibles (such as historical memory of notorious cases, political
culture, etc.). This allows a more concentrated focus on the deployment of
sex-role stereotypes in judicial and journalistic narratives. At the same time,
looking at reports of cases from other states and the treatment of the Florida
cases in the national media helps ensure that the implications of this
qualitative analysis are not confined exclusively to Florida-in other words,
there is no reason to believe that the cases discussed here are outliers.

Fifteen women have been sentenced to death in Florida since its
1924 introduction of the electric chair." Of the fifteen women, ten had their
sentences commuted to life in prison, 2 one was executed, 13 and four
remained on death row in August 2000.14 In addition to the sex-role
stereotypes deployed in the trials of these four women, the media reactions
to their crimes and convictions have been infused with gendered imagery
and editorialization. In March 1998, Florida executed Judy Buenoano, a
woman referred to by prosecutors and the media as the "Black Widow."'15

This execution, the first of a Florida woman since its introduction of the
electric chair, followed the widely publicized execution of Karla Faye
Tucker in Texas. The Florida press was quick to contrast Tucker's beauty,
religious conversion, penitence, and celebrity support with Buenoano's non-

10 Sabrina L. Miller, In The Shadow of Death: Life Goes on for Four Women

Condemned to Die in Florida, Hous. Chron., Nov. 7, 1999, at 11, available at 1999 WL
24263615.

1 For an overview of the death penalty in Florida and women on Florida's death
row, see Kathleen O'Shea, Women and the Death Penalty in the United States, 1900-1998
111-43 (1999).

12 Margaret Talev, Black Widow at End of Web, Tampa Trib., Mar. 29, 1998, at 1,

available at 1998 WL 2770104.
13 Judy Buenoano was executed on March 30, 1998.

14 Andrea Hicks Jackson had her sentence commuted to life imprisonment on June

16, 2000; see infra note 47. By comparison, 196 men were executed in Florida between 1924
and 1964. There were no executions in Florida between May 1964 and May 1979. Since
1979, 51 men have been executed, and 370 men are currently on Florida's death row. Florida
Department of Corrections, Death Row Fact Sheet, at http://www.dc.state.fl. us/oth/
deathrow/index.html (last modified Mar. 2001); Florida Department of Corrections, Death
Row Roster, at http://www.dc.state.fl.us/activeinmates/ deathrowroster.asp (last modified
May 27, 2001).

15 See, e.g., Alan Judd, Buenoano Death Raises Execution Issue, Sarasota Herald-
Trib., Mar. 31, 1998, at 4B, available at 1998 WL 27453834; Kathleen Sweeney, First
Woman Faces Electrocution, Fla. Times Union (Jacksonville), Mar. 29, 1998, at Al,
available at 1998 WL 6188503.

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44 Columbia Journal of Gender and Law [Vol. 11:1

descriptness, reluctance to court the press, and stubborn protestation of
innocence. 16

The following sections explore reactions to and representations of
the four women who were on Florida's death row at the time of Buenoano's
execution.17 These reactions and representations offer insights into societal
attitudes towards the use of violence by and against women. Each of the
women whose story is told below used violence in a way that confirmed a
negative sex-role stereotype or, conversely, violated a particular image of
appropriate female behavior. In each of these cases, combinations of the
woman's race, class, and perceived or actual sexual orientation intensified
her marginalization and alienation from the protections afforded by
conforming to community norms and expectations. The following
descriptions illustrate how these characteristics interact as society,
embodied here in the media and the courts, brands violent women as
deviant, threatening, and deserving of the most extreme social sanction-
the penalty of death.

A. Ana Cardona

The common-law crime of infanticide,18 which, as defined by
statute, can be committed only by women, institutionalizes the belief that
postpartum depression may drive women to murder. On a broader level, the
crime of infanticide provides a legal label for female hysteria (literally,
craziness coming from the womb). It at once carves out a space in the law
that ostensibly responds to women's experiences, and concretizes the notion
that new mothers may be incapable of controlling their behavior. The
specific crime of infanticide invokes a more general societal fear of

16 See, e.g., Julie Hauserman, State's Will to Execute Women Is Put to Test St.

Petersburg Times, Mar. 28, 1998, at IA, available at 1998 WL 4253910; Judd, supra note
15; Talev, supra note 12.

17 It seems somewhat artificial to refer to these women by their last names, but as
this is the common practice, it is followed here.

18 Unlike England and Canada, the United States does not have a statute that

distinguishes infanticide from other forms of murder; see, e.g., Christine A. Fazio & Jennifer
L. Comito, Note, Rethinking the Tough Sentencing of Teenage Neonaticide Offenders, 67
Fordham L. Rev. 3109, 3110 n.9 (1999); see generally Janet Ford, Note, Susan Smith and
Other Homicidal Mothers-In Search of the Punishment that Fits the Crime, 3 Cardozo
Women's L.J. 521 (1996); Michelle Oberman, Mothers Who Kill: Coming To Terms With
Modem American Infanticide, 34 Am. Crim. L. Rev. 1 (1996). Helen Boritch cites section
233 of the Criminal Code of Canada (1996): "A female person commits infanticide when by
a willful act or omission she causes the death of her newly-born child, if at the time of the act
or omission she is not fully recovered from the effects of giving birth to the child and by
reason thereof or of the effect of lactation consequent on the birth of the child her mind is
then disturbed." However, she notes that "most women who kill their children are charged
with other types of homicide." Helen Boritch, Fallen Women: Female Crime and Criminal
Justice in Canada 35 (1997); see also Infanticide Act of 1938, 1 & 2 Geo. 6, ch. 36 (Eng.).



Victim or Vamp?

"unnatural" and violent mothers: One of the most evil and least
comprehensible acts a woman can commit in the eyes of society is to kill
her child.

Ana Maria Cardona was sentenced to death in Florida on April 1,
1992 for beating and murdering her three-year-old son, Lazaro Figueroa.
The Florida press nicknamed the toddler "Baby Lollipops" because of the
shirt he was wearing when the police discovered his body. 19 Cardona's
conviction was secured largely through the testimony of her former live-in
partner, Olivia Gonzalez-Mendoza, who pleaded guilty to second-degree
murder and was sentenced to forty years' imprisonment. 20

In reviewing the Dade County Circuit Court's imposition of the
death penalty, the Florida Supreme Court narrated Cardona's story as
follows in an opinion per curiam: In the late 1980s, Cardona lived with
Lazaro's father, "a well-off drug dealer" named Fidel Figueroa, in "an
upscale apartment [where they] maintained a lavish existence.' 21 The month
before Lazaro's birth, Figueroa was murdered, leaving Cardona a $100,000
estate that she "exhausted in ten months" while Lazaro and his sister lived
with friends and relatives. 22 The children, after having been "turned over"
briefly to the Department of Health and Rehabilitative Services, were
returned to Cardona's custody.23 Cardona and her children lived with
Cardona's romantic partner, Olivia Gonzalez-Mendoza, in "a series of
cheap hotels, ' 24 and their only sources of income were "Gonzalez-
Mendoza's various jobs and shoplifting." 25 The situation is described in the
supreme court's opinion as follows:

During an eighteen-month period that began after the children
were returned to her, Cardona beat, choked, starved, confined,
emotionally abused and systematically tortured Lazaro. The child
spent much of the time tied to a bed, left in a bathtub with the hot
or cold water running, or locked in a closet. To avoid changing
Lazaro's diaper for as long as possible, Cardona would wrap duct
tape around the child's diaper to hold in the excrement. Cardona

19 See Cardona v. State, 641 So. 2d 361, 361 (Fla. 1994), proh. denied 725 So. 2d
1107 (Fla. 1998), cert. denied 513 U.S. 1160 (1995); Miller, supra note 10.

20 Craig Pittman, Interest Points to Death Row's Lack of Equality, St. Petersburg

Times, Jan. 18, 1998, at IA, available at 1998 WL 4241171. For Cardona's side of the story,
see Kathleen A. O'Shea, Women on the Row: Revelations from Both Sides of the Bars 99,
105, 107 (2000).

21 641 So. 2d at 362.

22 1d.

23 id.

24 Id.

25id.

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46 Columbia Journal of Gender and Law [Vol. 11:1

blamed Lazaro for her descent "from riches to rags," and referred
to him as "bad birth."

Gonzalez-Mendoza was aware of the abuse and began to
participate in the abuse because it pleased Cardona.26

Based on testimony from Gonzalez-Mendoza obtained as part of a plea
deal, 27 a jury found Cardona guilty of aggravated child abuse and first-
degree murder for having beaten Lazaro with a baseball bat on October 31,
1990 and having abandoned his body in the bushes near Miami Beach.28

The jury29 recommended death by a vote of eight to four, and the trial court
followed the jury's recommendation.30

In accordance with Florida sentencing procedures, the trial court
considered aggravating and mitigating factors in Cardona's case. It found
that the murder was especially heinous, atrocious or cruel,31 but that at the
time of the murder Cardona had been under the influence of extreme mental
or emotional disturbance due to her "fall from riches to rags" and her daily
use of cocaine.32 The defense strategy designed to elicit compassion
provoked cynicism among certain observers; one newspaper reported that
"even as she was being hustled out the [courtroom] door, Cardona tried to
paint herself as a victim. '33 According to the Florida Supreme Court, the
trial court also considered that 1) Cardona did not meet her father until she
was twelve; 2) she claimed that she was raped when she was eleven but her
mother and father did not believe her; and 3) a guardian ad litem for

26641 So. 2d at 363.
27 id.

28 According to Cardona and Gonzalez, the child was "'alive but injured' when

they left him in Miami Beach, four days before he was found by a utility crew working in the
area; an autopsy determined he had been dead less than a day at the time he was found.
Florida Judge Faults State Workers, Self in Beaten Boy's Death, Ariz. Republic, Dec. 9,
1990, at B13, available at 1990 WL 3742977. "'In [Cardona's and Gonzalez's] minds,
someone rich would find him. They'd clothe and feed him,' said Miami Beach Detective
Gary Schiaffo. They thought 'no one was going to question the rich,' so those people
wouldn't have to worry about Lazaro's scarred body." Donna Gehrke, Iniured Tot Lived for
Days, Hous. Chron., Dec. 8, 1990, at 17, available at 1990 WL 2977111.

29 "Baby Lollipops" Mom Goes on Trial Orlando Sentinel, Mar. 13, 1992, at B6,

available at 1992 WL 4673299.
30

1d

3 Fla. Stat. § 921.141(5)(h) (1991).

32641 So. 2d at 363; Fla. Stat. § 921.141(6)(b) (1991).

33 Patrick May, Fla. Woman Sentenced to Die for Torture-Murder of Son.,
Baltimore Sun, Apr. 2, 1992, at 3A, available at 1992 WL 9501433.



2002] Victim or Vamp?

Cardona's other two children recommended that a life sentence would be in
the surviving children's best interest.34

Andrew Kassier, Cardona's defense attorney, reflected that, during
the course of the trial, "'it became clear that Ana Cardona was going to be
held up to our community as a monster-that the ultimate goal of this
prosecution was to put a mother in the electric chair."' 35 This sentence
captures the dichotomy between "monster" and "mother" that structured
both sides' narratives of the case. At the end of the Supreme Court
proceedings, prosecutor Catherine Vogel said Cardona "deserved the
sentence because she took pleasure in torturing the toddler."36 Had a man
been charged with this murder, the two attorneys could not have drawn on
the culturally-ingrained ideal of benevolent motherhood to structure their
respective propositions: namely, the defense's argument that community
condemnation of a mother is antithetical to the treatment that "mothers"
deserve, and the prosecution's contention that the disjunction between
Cardona's alleged acts and the community ideal of motherhood required
imposing the death penalty.37 Each side attempted to show that its victory
would better protect the cultural ideal of motherhood-a narrative strategy
not available when defendants are men. In this case, the court upheld the
death penalty, comparing Cardona's actions to those of other defendants
convicted of aggravated child abuse leading to murder, and concluding that

34 641 So. 2d at 363. The trial court refused to admit the guardian's
recommendation into evidence; the guardian stated that the two children should never see
Cardona again, but that a life sentence would be in their best interest "because of the guilt
the children likely would feel if their mother was executed." 641 So. 2d at 365.

35 May, supra note 33.
36 David Cazares, Mother's Conviction Upheld, Appeal Reiected in Boy's Murder

Sun-Sentinel (Ft. Lauderdale), June 3, 1994, at 1B, available at 1994 WL 6818033. Vogel
had earlier insisted in her closing argument to the trial jury that "There is no word to describe
to you what (Cardona) had done to her own flesh and blood.... There is no word horrible
enough to tell you what she is .. " Mom Killed Her Baby, Jury Decides. Orlando Sentinel,
Mar. 21, 1992, at DI, available at 1992 WL 4675383.

37 This is not to say that men who murder children are socially accepted; clearly
they are not, as the death penalty statistics for men convicted of homicide show; see supra
note 14. However, it seems logical that men's criminal behavior could be contrasted with
humane norms of conduct expected of members of society generally, rather than with
specific, culturally-ingrained ideals of benevolent motherhood that are, by their very nature,
sex-specific. This intuition is borne out by the narration of facts in Florida cases of men
sentenced to death for aggravated child abuse: the defendant's behavior is portrayed as
abhorrent and unacceptable, but not specifically as sex-inappropriate or deviant for a man;
see, e.g., Stephens v. State, 787 So. 2d 747 (Fla. 2001); Lukehart v. State, 776 So. 2d 906
(Fla. 2000); James v. State. 695 So. 2d 1229 (Fla. 1997); but c.f Rivera v. State 561 So. 2d
536 (Fla. 1990) (death penalty upheld for defendant convicted of sexually abusing and
killing 11-year-old girl; similar crimes evidence properly admitted; doctor's diagnosis of
exhibitionism, voyeurism, and transvestism not sufficient to outweigh aggravating factors
including that murder was "especially heinous, atrocious, or cruel" and committed in a "cold,
calculated, and premeditated manner").



Columbia Journal of Gender and Law [Vol. 11:1

"in light of the extended period of time little Lazaro was subjected to the
torturous abuse leading to his death, the ultimate sentence is warranted in
this case. 38

The purpose of this analysis is not to challenge the Supreme
Court's decision, but to highlight certain features of its discussion of the
case. For example, why did it matter that Cardona allegedly squandered her
inheritance from Lazaro's father? Why did the trial court readily accept
Gonzalez-Mendoza's self-serving portrayal of Cardona as a dominant and
even abusive partner? Why was Cardona's "extreme emotional disturbance"
attributed solely to her economic impoverishment and drug use, rather than
to her traumatic childhood (perhaps thereby making it less compelling as a
mitigating factor in sentencing)? What effects did Cardona's inability to
understand or speak English39 have on the fairness of her trial, and on the
jury's perception of her as marginal and deviant: a Latina lesbian taken in
by the Miami drug culture,40 unable to conform to society's expectations of
her as a woman and mother?41 Had Cardona not been a pariah in so many
other respects, it is arguably unlikely that eight members of the jury and the
trial judge would have viewed her so readily as the embodiment of evil and
sentenced her to death.42

'8 641 So. 2d at 365-66, referring to Dobert v. State 328 So. 2d 433 (Fla. 1976)
(death warranted where defendant murdered his nine-year-old daughter by continuous
beatings, kicking, hitting, choking, and other torture and depriving her of medical care), affd
432 U.S. 282 (1977).

39 See Miller, supra note 10 ("Cardona, 37, a native of Cuba, spoke little English
when she came to death row.").

40 See Mother of Dead Baby Linked to Murder Plot St. Petersburg Times, Dec. 19,

1990, at 4B, available at 1990 WL 8094408 (talking about Cardona's "shady past,"
including previous arrests and four other children).

41 For example, Gonzalez had said that Cardona "resented having to take care of'

Lazaro, Mother Gets Death in Tot's Fatal Torture Chi. Trib., Apr. 2, 1992, at 13, available
at 1992 WL 4468893. In his closing argument, defense attorney Ron Gainor admitted that
"Ana Cardona was a rotten mother," but he insisted that "there is a difference between a
murderer and a criminally negligent person." Mom Killed Her Baby, Jury Decides supra
note 37. Interestingly, a Florida appeals court overturned a trial court's radical upwards
departure from the sentencing guidelines in the killing by a mother of her 17-day old infant,
noting that "[i]n the instant case, the trial court combined the age-related vulnerability of the
infant with what it considered an extraordinary and egregious criminal act, a mother killing
her own infant." Robinson v. State, 589 So. 2d 1372, 1373 (Fla. 1992), following Lettman v.
State, 526 So. 2d 207 (Fla. 1988) (murder of three-year-old child by father); see also Small
v. State 667 So. 2d 299 (Fla. 1995) (overturning upward departure from guidelines in case
of mother who killed thirty-five-month-old child).

42 The failure of the state's child protection system was also evident in this case.

Chief Dade Juvenile Judge William Gladstone admitted: "This case is my failure too .... We
all failed. Somehow, this child was killed, and he was killed by every person in this state."
Dan Sewell, Gruesome Child-Abuse Case Brings New Criticism of Florida System. Assoc.
Press, Dec. 11, 1990, available at 1990 WL 6035510. Lazaro and his sister had been placed
under state supervision two years earlier, after Cardona left them with a babysitter and didn't



Victim or Vamp?

Cardona told the trial jury (in Spanish) in response to its guilty
verdict: "'You don't know what I've gone through in my life. You don't
know anything about me."43 The "othering" of a mother who kills can occur
along many dimensions, from the view of women as naturally inclined to
hysteria and erratic behavior, to the inability to understand how a woman
could reject a heterosexual, family-oriented social universe. It has been
argued that women enjoy more lenient treatment by juries, such as fewer
convictions and lighter sentences, because jurors identify and empathize
with women more easily than they do with men.44 However, despite this
perception, the stories related here suggest that women on death row seem
particularly likely to have experienced the criminal justice system as
alienating and uncomprehending: in other words, that only certain women,
namely, those who conform to sex-role stereotypes, enjoy the potential for
sex-based leniency. The experience of alienation is compounded for women
who are otherwise marginalized because of their race or ethnicity, sexual
orientation, socioeconomic status, and other characteristics-precisely the
women who are most likely to end up being imprisoned or sentenced to
death.45 In this fashion, the death penalty serves both to "rid" society of
individuals perceived as violent and dangerous, and to identify and
condemn forms of deviance that are not criminal by statute, but that are
nonetheless experienced as serious threats to society's preferred self-
understandings and to social order.

B. Andrea Hicks Jackson

Relatively few women convicted for murder in the United States
have killed strangers.46 Perhaps for this reason, the normative and legal

return for three months. They were returned to their mother because there was no evidence
of abuse, and the state Health and Rehabilitative Services agency lost track of them. Id.

43 May, supra note 34; see also Mother Gets Death in Tot's Fatal Torture, supra
note 41 ("Ana Cardona shouted hysterically in Spanish at [Circuit Judge David L.] Tobin
after he announced the sentence.").

44See infra Part II.A.
45 For state-by-state data on women on death row current through June 30, 2000,

see Death Penalty Information Center, State Breakdown of Death Sentences for Females, at
http://www.deathpenaltyinfo.org/womenstats.html# State Breakdown; for additional
statistics on race and the death penalty, see Death Penalty Information Center, Race of
Defendants Executed Since 1976 at http://www.deathpenaltyinfo.org/ dpicrace.html (last
modified May 25, 2001); see also infra notes 62, 145. On the relationship between poverty
and capital punishment, see Stephen B. Bright, Counsel for the Poor: The Death Penalty not
for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835 (1994).

46 See supra note 5. By contrast, women are often victims of violent crimes

committed by attackers known to them: "On average each year from 1993-1998, 22 percent
of all female victims of violence in the United States were attacked by an intimate partner,
compared to 3 percent of all male violence victims." Intimate Partner Violence Against
Women Declined from 1993 through 1998: One-third of all murdered females were killed by

2002]



Columbia Journal of Gender and Law [Vol. 11:1

framework for such killings remains ill-developed. Murders of
acquaintances or family members fall more readily into pre-fabricated
narratives of interpersonal antagonism, greed, or revenge. Strangers, on the
other hand, fall outside of these narrative constructs. Juries, when
confronted with the unusual event of a woman killing a stranger, may be
particularly susceptible to filling in the gaps of the story with preconceived
notions about female psychology and behavior. The case of Andrea Hicks
Jackson offers a particularly striking example of this kind of narrative
elaboration. In the end, the case came down to a competition between two
very distinct psychological and behavioral narratives, with correspondingly
different legal consequences.4 ' The competing characterizations of
Jackson's frame of mind and behavior both relied, to a certain extent, on
sex-role stereotypes: the calculating, scheming, and deceitful woman, and
the irrational, irrepressible hysteric. The law allows some mitigation for the
latter type of defendant in the form of provocation and extreme emotional
disturbance defenses to a first-degree murder charge. 48 But the jury in
Jackson's case accepted the former characterization. On February 10, 1984,
a jury recommended that she be sentenced to death for the first-degree
murder of a police officer, a recommendation followed by the trial judge.49

The events, as narrated in an opinion by Justice Boyd in the Florida
Supreme Court's first review of Jackson's case, occurred as follows: 50 Late

partner, Bureau of Justice Press Release, May 17, 2000, available at
http://www.ojp.usdoj.gov/bjs/pub/press/ipv.pr (last visited Sept. 14, 2001). Overall, men
were almost nine times more likely than women to commit murder in 1999. U.S. Department
of Justice, Bureau of Justice Statistics, Homicide trends in the U.S.: Trends by gender,
http://www.ojp.usdoj.gov/bjs/homicide/gender.htrn (last modified Jan. 4, 2001). See
generally Domestic Violence Statistics-Battered Women Who Kill (presenting statistics
compiled by the National Clearinghouse for the Defense of Battered Women) at
http://www.cybergrrl.com/views/dv/stat/statbwkill.html (last visited Jan. 28, 2001).

47 See, e.g., Kimberld Crenshaw, Whose Story Is It, Anyway? Feminist and
Antiracist Appropriations of Anita Hill, in Race-ing Justice, En-gendering Power : Essays on
Anita Hill, Clarence Thomas, and the Construction of Social Reality 402, 403-04 (Toni
Morrison ed., 1992) ("[A] t least one important way social power is mediated in American
society is through the contestation between the many narrative structures through which
reality might be perceived and talked about.... [T]he central disadvantage that [Anita] Hill
faced was the lack of available and widely comprehended narratives to communicate the
reality of her experience as a black woman to the world.").

48 These defenses are also embedded within a male-oriented framework; see

generally Victoria Nourse, Passion's Progress: Modem Law Reform and the Provocation
Defense 106 Yale L.J. 1331 (1997).

49 See Jackson v. State, 498 So. 2d 406, 409 (Fla. 1986), cert. denied 483 U.S.
1010 (1987).

'0ld. at 408-09. The Florida Supreme Court vacated Jackson's death sentence three

times in response to habeas appeals, and each time the Duval County Circuit Court
resentenced her to death. Jackson v. State, 704 So. 2d 500 (Fla. 1997) (trial court
resentencing order's summary disposition of mitigating factors precluded meaningful
appellate review); Jackson v. State, 648 So. 2d 85 (Fla. 1994) (unconstitutionally vague



Victim or Vamp?

in the evening of May 16, 1983, Jackson reportedly vandalized her own car,
breaking out the windows and removing the car's battery, spare tire, and
license plate. Depending on which characterization one accepts, she either
did this in a fit of rage or as part of a premeditated scheme. When police
officers Burton Griffin and Gary Bevel arrived on the scene, Jackson told
them that someone else had destroyed the windows of her car. At the
officers' request, she went into an apartment to fetch the car's bill of sale.
Griffin left Bevel to write a criminal mischief report. With Jackson's
permission, Bevel had the car towed. Bevel was then told by witnesses that
Jackson had in fact destroyed her own car. He arrested her for filing a false
report. Justice Boyd recounts:

Appellant's response was to kick, scream and strike the officer as
he restrained her and placed her in the back of his patrol car.
Once in the back seat appellant said, "Wait a minute. You made
me drop my damned keys." As officer Bevel stepped back and
bent down, apparently looking for the keys, appellant shot him
six times, four times in the head, once in the shoulder and once in
the back. Bevel fell into her lap and she pushed him aside and ran
from the area.5'

Following the shooting, Jackson went to Shirley Ann Freeman's home and
washed her clothes.52 Jackson told Freeman that "she had shot a cop
because she 'wasn't going back to jail' and she didn't like men touching
her." 53 Freeman also noticed scratches and welts on Jackson's back that
could have led the jury to infer the excuse of self-defense.54

instruction on CCP aggravating factor); Jackson v. Dugger. 547 So. 2d 1197 (Fla. 1989)
(victim impact evidence impermissibly presented to jury over defendant's objection). The
fourth remand for resentencing was issued by the Florida supreme court on Jan. 27, 2000.
767 So. 2d 1156 (Fla. 2000) (sentence vacated because defendant not present at
resentencing). On June 16, 2000, the trial judge resentenced Jackson to life imprisonment:
"Yesterday, Chief Circuit Judge Donald R. Moran-who maintained for more than 15 years
that Jackson should die for killing Officer Gary Bevel-stunned a Jacksonville courtroom
when he changed his sentence and ordered that she instead spend the rest of her life in
prison." Vivian Wakefield, Death sentence switched to life. Fla- Times-Union, June 17,
2000, at Al; see Vivian Wakefield, Jackson: God moved me from Death Row Judge's ruling
a miracle, police officer's killer says Fla. Times-Union, June 23, 2000, at Al ("While
Jackson credits her faith in God for changing the sentence handed down by Chief Circuit
Judge Donald R. Moran, the judge sounded exasperated in court last week when he changed
Jackson's sentence from death to life."); see also Jim Saunders, Killer's fourth death
sentence lifted, Fla. Times-Union, Jan. 28, 2000, at Al; Teresa Stepzinski, Death penalty
draws fire Fla. Times-Union, June 24, 2000, at Al.

" 498 So. 2d at 409.
52

1d.

53 id.

41d. at 410.

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Columbia Journal of Gender and Law

A central issue in Jackson's appeals was whether the jury properly
found the aggravating factor of CCP, that is, that the crime "was committed
in a cold, calculated, and premeditated manner without any pretense of
moral or legal justification."55 The prosecution sought to prove that the
killing "was the product of cool and calm reflection and not an act
prompted by emotional frenzy, panic, or a fit of rage. 56 Although a number
of witnesses to the incident testified at Jackson's third resentencing hearing
that Jackson did not appear drunk or high, Jackson presented three mental
health experts to establish that she was mentally impaired at the time of the
shooting.57 The mental mitigation that she sought to establish included that
she was under the influence of drugs and alcohol at the time of the murder;
that she was suffering from post-traumatic stress disorder as a result of
extended sexual abuse by her stepfather; that she had a flashback of a prior
sexual assault when the police officer struggled with her; and that her
"capacity to appreciate the criminality of her conduct or to conform her
conduct to the requirements of law was substantially impaired and that she
was under the influence of extreme mental or emotional disturbance at the
time of the crime."' 8 Nevertheless, the trial judge in the third resentencing
found that these factors did not rise to the level of mitigation.59

The trial judge and repeated juries did not accept a story of self-
defense or of emotional rage, either of which would have precluded a
finding of CCP. The Florida Supreme Court upheld this determination,
holding that there was "competent, substantial evidence" in the record
contradicting Jackson's claim that she lost emotional control at the time of
the shooting. 60 In particular, the Supreme Court's per curiam opinion in
Jackson's third habeas appeal noted that "Jackson was able to devise a plan
to catch Officer Bevel off guard (i.e. dropping her keys)[, which] is not the

" 704 So. 2d at 503; Fla. Stat. § 921.141(5)(i) (1995).
56 704 So. 2d at 504. This corroborated the trial court's finding that "[t]his record

does not show a woman panicking in a frightening situation, but rather a woman determined
not to be imprisoned who fashioned her opportunity to escape and then acted accordingly."
498 So. 2d at 412.

17 704 So. 2d at 503. On Jackson's habeas appeals, see supra note 42.

51 Id.; see also 648 So. 2d at 87 (noting that Jackson presented expert testimony at
her first resentencing that she suffered from post-traumatic stress disorder and battered
woman syndrome as a result of extended sexual abuse).

59 704 So. 2d at 503; a unanimous jury recommended the death sentence in
Jackson's third resentencing hearing. In her first resentencing hearing, a different jury had
recommended death by a vote of seven to five. 648 So. 2d at 87. The trial judge followed the
jury's recommendation of a death sentence in each of Jackson's first three resentencing
hearings.

60 704 So. 2d at 504. Nevertheless, the supreme court remanded the case for a third
resentencing hearing because Jackson had not been present at the second resentencing; see
supra note 52.

[Vol. 11: 1



Victim or Vamp?

type of activity performed by a person in a frightened or panicked state."61

This statement illustrates the ways in which stereotypes shape, and may
distort, interpretations of violence by women. 62 The standard narrative
framework forces parties in a confrontation into the mutually exclusive
categories of victim and attacker; in this story, the role of victim was
assigned to the police officer. This simplified model dictated the
interpretation of all the surrounding details, as the justices endeavored to
create what was, for them, a logically cohesive account of the incident in
accordance with their understandings of human behavior. The assumptions
underlying these understandings remained essentially unexamined.
Accordingly, a majority of the justices hearing Jackson's third habeas
appeal concluded that all of Jackson's actions formed "part of a careful plan
to kill the officer and avoid arrest.'6 3 The justices dismissed evidence that
Jackson believed she was about to be raped as "purely subjective,'6 and
therefore irrelevant to the question of whether the shooting was justified.
They neglected the role of this evidence in establishing mental mitigation.
This is a separate question from that of justification, and one that would
argue against the imposition of the death penalty.

Chief Justice Kogan, concurring in part and dissenting in part in
Jackson's third habeas appeal, disagreed with the majority's handling of the
CCP analysis. The Chief Justice wrote:

It is just as likely that Jackson, who did not live with her husband,
returned to the apartment the third time to get her personal
belongings so she could leave, as it is that she returned to get her
gun so she could shoot the officer. There is no evidence that
Jackson became aware of her impending arrest until she left the
apartment the third time and was informed that she was under
arrest and the struggle ensued.65

He continued: "[Jackson's] actions support the finding that the shooting was
a spur-of-the-moment reaction and the culmination of built up anger and
rage rather than the fruition of a cool and calmly reflected plan. 66 Justice

61id

62 Kathy Dobie, Woman on Death Row Relies on the Bible for Strength

Philadelphia Trib., Jan. 5, 1996, at 6A, available at 1996 WL 15818696 ("Psychiatrists
testified that Hicks Jackson had suffered a traumatic flashback from the countless rapes and
beating and shot the officer thinking he was trying to hurt her, too. The prosecution told the
jury that Hicks Jackson had fooled these shrinks, and wanted only to escape arrest when she
killed the officer in cold blood.").

63704 So. 2d at 505.

64Id The court also dismissed this as a possible mitigating factor. Id. at 506.
65704 So. 2d at 508 (Kogan, C.J., concurring in part and dissenting in part).
66Id. at 509 (Kogan, C.J., concurring in part and dissenting in part).

2002]



54 Columbia Journal of Gender and Law [Vol. 11:1

Anstead, concurring with the Chief Justice, characterized the killing as
"tragic and emotionally charged, 6 7 a far cry from the majority's image of a
cold-blooded execution.68

The media's reaction to this case, and to the cases of other women
on death row, corroborates the centrality of sex-role stereotypes in the
narratives people tell themselves about women who kill.69 While this
impulse to rely on familiar categories and embedded assumptions may be
understandable, its reinforcement through judicial institutions exacerbates
its hold on the popular psyche, obstructing the possibility for social attitudes
and interactions to approach a more egalitarian model. Unlike men, women
who use violence commit the additional transgression of doing something
"unwomanly." Vanessa Thorpe cites statistics from the documentary
Perverted Justice that "an amazing 40 per cent of women awaiting
execution on death row in the United States are either lesbian or have had
the suggestion that they were a masculine man-hater made against them
during trial. 70 This certainly occurred during Jackson's trial.71 One
newspaper tellingly recounted the crime as follows:

Officer Gary Bevel responded to a call from Miss Jackson that
her car had been vandalized. When he arrived, he determined that
she was drunk and spoke to neighbors, who said she had
vandalized the car herself. When Bevel tried to arrest her for
filing a false police report, she shot him six times with a .22
caliber pistol. She said she "hated men." 72

Valentine Schmidt, the producer of Perverted Justice, notes that "[d]uring
[Jackson's] trial the jury was told she hated to be touched by men." 73

Schmidt emphasizes that, in trials against women who use violence, "[t]he

671d. at 510 (Anstead, J., concurring in part and dissenting in part).

68 Justice Anstead also reiterated the Chief Justice's point that "the majority has the

defendant going back to her estranged husband's apartment to get a gun . . . before the
alleged motive for the murder, her arrest, even took place." Id. at 511 (Anstead, J.,
concurring in part and dissenting in part).

69 See infra Part II.

70 Vanessa Thorpe, Being Gay Is Fatal in the US Courts Independent (London),

July 13, 1997, at 3, available at 1997 WL 12333261. Thorpe adds: "A woman who plans to
commit murder in the southern states of America should be certain to wear frilly dresses. It
could turn out to be the best way for her to avoid the electric chair." Id.

71 "'Lesbianism is not often actually stated in court by the prosecution, but it is

implied all the time,' says Valentine Schmidt, producer of the documentary [Perverted
Justice]." Id.

72 17 Murderers Now Facing Execution Omaha World-Herald, Nov. 11, 1984,
available at 1984 WL 2543821.

73 Thorpe, supra note 73.



2002] Victim or Vamp? 55

idea is repeatedly put over that the defendant is not normal. 7 4 For women,
being "normal" means conforming to traditional notions of femininity.
Those who do not conform are inherently suspect; their crimes only confirm
their deviance, 75 and the threat they pose to a social order built on
heterosexuality, romantic love, and the observance of sex-role boundaries.76

In an interview with Schmidt, Jackson stated: "You go on death
row, you're gonna find most people have been abused in their lives and are
poor.",77 In another interview, she explained: "I am not some raving vicious
animal .... I did not mean to hurt that man. I thought he was raping me. ' '78

The fact that Jackson committed this shooting remains undisputed.
However, the unwillingness of four juries to believe that she did so out of
rage or panic, rather than as part of a calculated and premeditated scheme,
led them to recommend the death penalty over life imprisonment, although
a series of successive habeas appeals finally led the trial judge to commute
Jackson's sentence to life in prison. A woman who reportedly hated men
proved unable to convince a jury that she had felt threatened by one.

C. Virginia Larzelere

Eight of the fifty-two women on death row as of January 2001
received the death sentence for hiring someone else to commit murder.79

74 id.

75 It is interesting to note the etymological relationship between the words
"deviant," meaning different, and "devious," meaning underhanded and potentially
dangerous.

76 On the tendency for black women in particular to be perceived as "tough,

domineering, emasculating, strident, and shrill," and thus incapable of being victims, see
Regina Austin, Sapphire Bound, 1989 Wis. L. Rev. 539, 539 (1989); on race bias in the
criminal justice system generally, see, for example, Paula C. Johnson, At the Intersection of
Injustice: Experiences of African American Women in Crime and Sentencing 4 Am. U.J.
Gender & L. 1 (1995); Bryan A. Stevenson and Ruth E. Friedman, Deliberate Indifference:
Judicial Tolerance of Racial Bias in Criminal Justice, 51 Wash. & Lee L. Rev. 509 (1994);
see also supra note 49, infra note 149. The Bureau of Justice Statistics reports that "an
estimated 28% of black males will enter State or Federal prison during their lifetime,
compared to 16% of Hispanic males and 4.4% of white males." Criminal Offenders
Statistics supra note 2.

77 Thorpe, supra note 73. Some newspapers did report Jackson's allegations of
prior abuse: "[A]ttomeys learned that as Officer Gary Francis Bevel was arresting her for
disorderly conduct, Jackson's mind flashed back to her childhood when she was raped in the
back seat of a car by a male family member when she was 10. She thought it was going to
happen again." Kathryn Kahler, Penalty: Death Greensboro News & Rec. (N.C.), May 2,
1993, at Fl, available at 1993 WL 7535364. However, sympathetic readings can also
objectify and even trivialize the women involved. The same journalist who reported this
prior abuse described Jackson as "a plump and perky 35-year-old mother of two." Id.

78 id.
79 See supra note 8.



Columbia Journal of Gender and Law

This perhaps surprising statistic is a result, in part, of the way in which
aggravating factors are defined in the sentencing phase of murder trials. In
Florida, and in other states with similar guidelines, the aggravating factor of
CCP is particularly likely to be found in the case of a murder performed by
a hired killer and motivated by the prospect of financial gain.80 In
accordance with these guidelines, Virginia Larzelere was sentenced to death
for "masterminding" 8' her husband's murder in order to collect money from
his life insurance policy.

Norman Larzelere, a dentist, was shot in his office by a masked
gunman on March 8, 1991.82 Virginia Larzelere's son Jason was accused
but acquitted of being the triggerman.8 3 Even though no other gunman was
or has been identified, Virginia Larzelere was found guilty of first-degree
murder and sentenced to death by the Volusia County Circuit Court. She
continues to maintain her innocence in planning or committing the crime.8 4

The media's portrayal of Larzelere has been that of a scheming
harpy whom the courts rightfully prevented from having the last laugh.8 5

Prosecutors and the media painted Larzelere as a domineering, greedy
woman who intimidated and overpowered those around her: "One possible
witness, a handwriting expert, said in a deposition that Jason Larzelere
appeared to be more tense writing letters to his mother than to the judge
presiding over his case."86 Steve Heidle, the prosecution's prime witness,
"testified that he didn't go to the police because he was 'scared to death of
Virginia and her family."''8 7 Norman Larzelere's mother said that Virginia
Larzelere "had left 'a path of destruction,', 88 and Edgewater detective
David Gamell, commenting on the verdict, affirmed: "'I feel we've proven

'o See Fla. Stat. § 921.141 (2000) (listing aggravating and mitigating factors and

sentencing procedures for capital felonies).
81 The mitigating factor that Larzelere was not the shooter was given "insignificant

weight" due to the fact that she was "the mastermind behind the killing." Larzelere v. State,
676 So. 2d 394, 399 (Fla. 1996), reh'g denied 679 So. 2d 756 (Fla. 1996), cert. denied 519
U.S. 1043 (1996).

2 676 So. 2d at 398.

83 See id. at 407.

84 See Pat LaMee, Larzelere's Appeal: Teen Unreliable Orlando Sentinel, Aug. 29,
1995, at Cl, available at 1995 WL 9707898; Woman Is Given Death Sentence St.
Petersburg Times, May 12, 1993, at 7B, available at 1993 WL 3852025.

85 See, e.g., Sean Somerville, Larzelere Found Guilty of Murder, Orlando Sentinel

Feb. 25, 1992, at AI, available at 1992 WL 4660119.

86 Sean Somerville, Larzelere Son Now in Forefront of Murder Saga, Orlando

Sentinel, Aug. 18, 1992, at BI, available at 1992 WL 10622674.
87 LaMee, supra note 87.

88 Sean Somerville, Larzelere Should Die, Jurors Say, Orlando Sentinel, Mar. 5,

1992, at D1, available at 1992 WL 4662389.

[Vol. 11: 1



2002] Victim or Vamp? 57

Virginia to be a greedy, manipulative, evil woman.' 8A 9 The prosecution's
strategy, and the publicity surrounding the trial, tended to focus more on the
kind of woman Larzelere was than on her alleged actions.

The theme of greed was pervasive throughout the trial, both as a
motive for the crime and as a core aspect of Larzelere's culpable and
morally defective character: "Juror Raymond Clay said Larzelere's
purchase of more than $2 million in life insurance for her husband was
incriminating. 'The biggest thing was her lifestyle, her spending and her
money. ,,,90 One journalist reported: "Once known for her elegant dress,
Larzelere had been divorced twice and had one marriage annulled before
she married Norman Larzelere."9' She was portrayed as having pressured
her husband to take out life insurance policies,92 and then orchestrating his
murder.93 The fact that the alleged gunman was Larzelere's teenage son
contributed to the jury's condemnation of Larzelere: "A jury recommended
the death penalty after prosecutors told them Virginia hired her 'own flesh
and blood,' to kill her husband. 94 Yet even though her son was
subsequently acquitted based on a lack of evidence, and no other gunman
has been identified or convicted, Larzelere was unsuccessful in appealing
the sentence of death. In the phenomenon of courtroom storytelling, the
cohesiveness and plausibility of a particular version of events may be
reinforced as much, if not more, by the audience's perception of the
characters than by evidence supporting conflicting accounts of the plot.

D. Aileen Wuornos

Aileen Wuornos, known as Florida's "Damsel of Death," received
multiple death sentences for the separate shooting murders of six men (the
body of a seventh alleged victim has never been found). Variously referred
to in the press as "a hitchhiking prostitute," 95 "an admitted prostitute,"96 and

89 Id.

90Id. (omission in original).
91 Somerville, supra note 90.

92 676 So. 2d at 399.
93 Id. at 400.

94 Sean Somerville, Jason Larzelere's Case Was Challenge Orlando Sentinel, Sept.
22, 1992, at Al, available at 1992 WL 10631199.

95 E.g., Purvette A. Bryant, Judge Postpones Wuomos Appeal Orlando Sentinel,
Aug. 28, 1998, at D3, available at 1998 WL 18545276; Wuomos Loses Last Direct Appeal
Fla. Today, May 10, 1996, at 6B, available at 1996 WL 10102328; Wuornos Loses Appeal
in 6th Death Sentence Orlando Sentinel, May 10, 1996, at D5, available at 1996 WL
2604210.

96 Jim Tunstall, Serial Killer Loses Appeal for 6th Time Tampa Trib. (Fla.), May
10, 1996, at 4, available at 1996 WL 10226025.



Columbia Journal of Gender and Law

a "onetime prostitute who lured men to their deaths by posing as a
hitchhiker," 97 Wuornos has been the subject of newspaper articles,
television shows, and at least two docudramas. One commentator observed:
"The press, and especially the television tabloid shows, had a field day with
the story about what they called 'the man-hating murderer,' apparently
because Wuornos was an admitted lesbian."98 The themes of lesbianism,
man-hating, deceitfulness, greed, deviance, and manipulativeness that frame
the stories society tells itself about women who use violence pervade the
transcripts and media reports of the Wuornos trials.

In 1989 and 1990, Florida law enforcement officials were
confronted with a series of homicides. In December 1989, the body of
Richard Mallory was found in a wooded area in Volusia County. He had
been shot several times.99 In June 1990, the body of Charles E. Carskaddon
was found in a secluded area in Pasco County. Eight small caliber bullets
were recovered from the body.'00 Also in June 1990, the badly decomposed
body of David Spears was found. Spears had died of six gunshot wounds. 01

In July 1990, law officers found the car of Peter Siems in Orange Springs.
They never found Siems's body.' 0 2 In August 1990, the body of Troy
Burress was found eight miles from a highway intersection. An autopsy
showed he had died of two gunshot wounds.'0 3 In September 1990, the body
of Charles Humphreys was discovered in an isolated area. He had died of
seven gunshot wounds. 10 4 In November 1990, the body of Walter Antonio
was found in a wooded area north of Cross City. He had been shot four
times with a .22 caliber gun.10 5 Many of the bodies were found nude, with
the men's possessions and vehicles stolen or abandoned nearby. A joint

97 Channing Gray, In Concert: Darkness Becomes Diamanda Galas, Providence J.-
Bull. (R.I.), May 15, 1996, at Fl, available at 1996 WL 10325938-

98 Vincent Canby, Director Cuts Sad Slice of Americana, Plain Dealer (Clev.), June

24, 1994, at 4, available at 1994 WL 7191556; see also P.C. Smith, Millie Wilson at Jose
Freire 82 Art in America 119 (1994), available at 1994 WL 13086481 ("The trial of
Wuomos ... was marked by attacks branding her as a man-hating 'demon-dyke."').

99 Wuornos v. State, 644 So. 2d 1000, 1003 (Fla. 1994), cert. denied 514 U.S. 1069
(1995).

100 Wuomos v. State, 676 So. 2d 966, 967 (Fla. 1995), cert. denied 519 U.S. 968
(1996).

101 Wuornos v. State, 644 So. 2d 1012, 1015 (Fla. 1994), cert. denied 514 U.S.

1070 (1995).

'02 644 So. 2d at 1005. A palm print on the interior door handle matched that of
Wuornos. Id.

103 644 So. 2d at 1015.

105 Wuomos v. State 676 So. 2d 972, 973 (Fla. 1996), cert. denied 519 U.S. 997

(1996).

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investigation into these homicides led law enforcement officers to Aileen
Wuornos in January 1991. Tyra Moore, Wuomos's romantic partner and
another suspect in the killings, allowed Florida police secretly to tape
numerous conversations between her and Wuomos, which ultimately led to
Wuornos's confession and conviction. 10 6

The transcript from Wuornos's first trial, for the shooting of
Richard Mallory, vividly depicts the deployment of sex-role stereotypes by
attorneys on both sides of the case. The key insight gleaned from reading
these transcripts is not that advocates use familiar categories and hyperbolic
rhetoric to secure victory in criminal trials, as is the case for both male and
female defendants, and for a range of crimes. 107 What is particularly
noteworthy is the way in which these stereotypes are deployed-namely, to
draw on and reinforce societal norms that equate the use of violence by
women with an impermissible attempt to subvert their subordinate position
in a deeply hierarchical, and deeply gendered, social order. As John Tanner,
the attorney for the State, impressed upon the jury in his opening statement:
"She now wanted the ultimate control. She wanted all that Mr. Mallory had;
his car, his property, and his life."' ' The prosecution presented this as the
case of a predatory prostitute whose insatiable appetite for sex and money
led her on a savage and irrepressible killing spree in her quest for "the
ultimate control."' 10 9

The defense, by contrast, portrayed Mallory as the predator and
Wuornos as his prey. Public defender Trish Jenkins explained to the jury:
"During the period of time that she was being subjected to the abuse that
Mr. Mallory was inflicting, he told her, 'I've done this to other women.' He
wanted to see her pain." 110 Jenkins continued: "You'll hear testimony that

1°6See State v. Wuornos, No. 91-0257CFAES, 1991 WL 352757, at * 1-2 (Fla. Cir.
Ct. Dec. 13, 1991) (order denying defendant's motion to suppress videotaped confession).
"The police were obviously aware of the relationship and the feelings that Defendant
Wuomos had for [Tyra] Moore, but to characterize such knowledge as exploitation or abuse,
is unsubstantiated by the facts." Id. at *3. "The use of the relationship between the Defendant
and Ms. Moore . . . did not reach a point where the Defendant Wuornos was capable of
making a rational decision. She obviously had an opportunity to reflect on her conduct and
her choices and, because of her concern for her friend, chose to confess. This choice was a
result of her exercising her free will .... Id. at *5.

107 For example, during the first day of testimony in a sentencing hearing for

convicted killer Daniel Conahan, "prosecutors portrayed him as a cold-blooded predator who
murdered for pleasure. Defense attorneys countered with a portrait of Conahan as a dutiful
son who moved to Florida to help his ailing parents." Rodney Crouther, 2 Sides of Same
Man; "Gentle" son or predator?. Sarasota Herald-Trib., Nov. 3, 1999, at IA.

108 John W. Tanner, State's Opening Statement at 676, in 4 Transcript of

Proceedings, State v. Wuornos, Seventh Judicial Circuit of Florida, Deland, Fla., Jan. 13-17,
1992 (No. 91-0257-CFAES).

109 Id

110Tricia Jenkins, Defense's Opening Statement at 686-87, in id.

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she was terrified. She didn't know what to do."' 11 The very social hierarchy
that the prosecution argued Wuornos was trying to subvert made her feel
trapped and helpless: "She knew she couldn't tell anybody [what had
happened]. Who was going to believe her. She's a prostitute. Mr. Mallory
was a business man."'1 2 The narrative of power constructed by the defense
was the mirror image of the prosecution's: In the defense's version,
Mallory, not Wuornos, was the powerful one. The defense painted Wuomos
(whom they referred to by her nickname, Lee) as a frightened victim
trapped by Mallory's domination, and by the societal injustices that pushed
her into leading the dangerous life of a prostitute. 1 3

Both the defense and the prosecution in this trial deployed sex-role
stereotypes in their attempt to construct intelligible narratives of the events
leading up to the killing. The use of stereotypes is itself a type of shorthand,
enabling an audience with limited time and information (the jury) to receive
and process data in an organized fashion. By casting the key actors in
familiar roles, the attorneys on either side of a case facilitate their task of
convincing a jury that their version of events is the accurate one. In a
criminal trial, this process of typecasting is embedded in a larger narrative
of right and wrong, good and evil. Choosing the prosecution's or the
defense's version of the story itself entails an answer to the ultimate
question of guilt.

The supporting characters in a criminal trial may also be typecast to
enhance a particular storyline. For example, while the defense endeavored
to portray Wuornos as a frightened victim, they painted a picture of Tyra
Moore, Wuornos's partner and the police informant, as greedy and
opportunistic; Moore became the "Virginia Larzelere" of the defense's
narrative. In attacking Moore's credibility, the defense attorney described
how "[l]aw enforcement put her in a motel, paid for all of her expenses.
Basically said, gave her whatever she wanted, beer, food, shopping at the
mall.""14 Like the other familiar themes deployed by both the defense and
the prosecution during Wuornos's trial, the typecasting of Moore was
highly sex-specific: it is difficult to envisage a defense attorney attempting
to discredit the incriminating testimony of a male co-conspirator by telling
the jury that the FBI paid for him to go "shopping at the mall."

The theme of female greed was also deployed by the prosecution
against Wuornos: "This is a murder out of greed. This is a woman that
could make, according to her own testimony, I don't care how you figure it,

.l. Id. at 687.
11

2 Id.

"3 Id. at 683, 686; see also William A. Miller, Defense's Closing Statement at

2154-55, in 14 Transcript of Proceedings, Jan. 27, 1992.

114 Jenkins, supra note 111, at 687.

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thirty to fifty thousand a year and squander it just as quickly."'"15 The use of
greed as a psychological trope in courtroom story-telling is driven partly by
the shape of the law: one criterion for determining whether a murder is
"cold, calculated, and premeditated" under Florida law is whether or not it
was motivated by a desire for financial gain. The law itself tracks and
reinforces social determinations about what kinds of actions are particularly
abhorrent. The prosecution has every incentive to tell a story that fits the
model of personal-greed-deserving-of-societal-condemnation. It is natural
to create a convincing account of an action motivated by greed by
presenting greediness as the protagonist's dominant character trait. The
legal definition of a "cold, calculated, and premeditated murder" both
permits and fosters this strategy.

For these reasons, the trial of Wuornos for Mallory's murder was
framed largely as a competition between two narratives about Wuornos's
character."16 Implicit in both sides' arguments was the premise that whether
or not Wuornos had the requisite mens rea for the crime of premeditated
murder could be determined through a character assessment." 7 While the
defense also tried to argue that Wuornos was mentally incapable of forming
a criminal intent, their basic argument on her behalf was one of self-
defense. As one of the defense attorneys insisted during closing argument:
"Lee Wuornos is not guilty of First Degree Premeditated Murder or Armed
Robbery. She defended herself. She had had enough."" 8

The defense walked a fine line between choosing a narrative that
people could identify with, making Wuornos's actions comprehensible and
perhaps even excusable, and explaining the killing as a product of
Wuornos's uniquely dysfunctional psychology and background. The
narrative of unique dysfunctionality figured much more prominently in the
defense's arguments during the sentencing phase of the trial, after Wuornos
had already been found guilty of first-degree murder. As one of the defense
attorneys insisted at the sentencing hearing:

This is a person who is not well. This is a person who needs help.
She never got that help. . . . She doesn't see the world the way
you and I see it. She doesn't understand the world the way you

115 John W. Tanner, State's Closing Statement at 2186, in 14 Transcript of
Proceedings, Jan. 27, 1992.

116 The theater aspect of the trial was highlighted by Judge Uriel Blount during the

sentencing hearing: "Miss Wuomos, when I have completed my task here today, you will
begin the first day of the rest of your life. The curtain will fall on the tragic drama of the trial
of Aileen Wuomos." Blount, J., Sentencing at 493, in 3 Transcript of Proceedings, Jan. 28-
31, 1992.

117 This kind of reasoning recalls the chain of character inferences prohibited under

Federal Rule of Evidence 404.

11 Jenkins, supra note 111, at 689.

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and I understand it. She cannot function in it the way you and I
function in it."9

Defense attorney Trish Jenkins asked the jury: "How do I make you
understand that everything that Lee feels, does and says is filtered through
that disorder, through that impairment? Everything must go through that
filter. She is not like the rest of us."'1 20 Jenkins continued: "She has no
control. Everything happens to her. She is a person who thinks that pain and
unhappiness is inevitable. She doesn't understand, she doesn't know, she
doesn't have the ability to control that."'' 21 In the defense's narrative,
Wuornos was a woman who "ha[d] no control." For the prosecution, by
contrast, she was a woman who would do anything to get it.

The prosecution flatly rejected the defense's narrative of a woman
from a troubled background doing her best to fend for herself in a hostile
world:

Aileen Wuornos has been portrayed as a victim by the Defense.

She is not a victim in any sense of the word.

She's not a victim because she's a prostitute. She has chosen to
be a prostitute. Her reasons ultimately given was [sic] when she
first started out, apparently a pretty young, young woman, was
that she only made about seventy-five cents an hour working but
she could make sixty to a hundred dollars at a time for sex.

And she learned very quickly that that was, for her, the preferred
way to make a living and that preference, that choice carried on
throughout her lifetime.

She indicated she likes sex. There's nothing wrong with that. But
that's one of the reasons she was out there. She tried to push it off
on the men, something to the effect, well, if they would keep their
pants on, keep their wallets in their pocket, we wouldn't be out
here.

119 Billy H. Nolas, Defense's Opening at 14, 16, in 1 Transcript of Proceedings,

Jan. 28-31, 1992.
120 Tricia Jenkins, Defense's Closing at 449, in 3 Transcript of Proceedings, Jan.

28-31, 1992.
12 1Id. at 454.

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I guess drug dealers could say the same thing.... 122

The role of choice and agency in these respective narratives is mixed. The
prosecution's portrayal of Wuomos's character and situation was in some
ways more empowering than that of the defense: 'Now, what was she afraid
of? This is what she did for a living. This is where she chose to work, she
chose to work the highways and she wanted people to pick her up."'123

However, this was not a narrative of healthy choice, but rather of an
insatiable appetite for domination and control. For Wuornos's character to
fit the prosecution's script, there could be no happy medium:

To take all the man has physically, some say spiritually, this
tremendous and almost absolute control. There's only one thing
left. There is only one thing left and that's to kill. You can't have
much more than all the person except their life. And that's what
she wanted and that's what she took.124

This is a woman moving out of power in control into a new, a
new and unfathomable for you, and area of domination to the
extent of snuffing out a life. It became obscenely simple to have
it all. 125

The prosecution teams in Wuornos' trials used this image of a woman bent
on subverting the gender hierarchy-to "take all the man has physically
[and] spiritually" in her quest to achieve "absolute control"--to impress
upon the jury that Wuornos was a menace to society and deserving of the
ultimate condemnation.

In the penalty phase of the Mallory case, three defense
psychologists concluded that Wuornos suffered from borderline personality
disorder, resulting in extreme mental or emotional disturbance at the time of
the crime. 126 The defense also presented evidence about Wuomos'
background: her parents were divorced when she was born; her father hung
himself in prison, where he was serving time for rape and kidnapping; her
mother abandoned her, and Wuornos was adopted by her grandparents; her
grandfather, an alcoholic, later committed suicide, and her grandmother

122 Tanner, supra note 116, at 2163.
"3 Id. at 2164.

1141d. at 2173-74.

121d. at 2186.

126644 So. 2d at 1005.

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died of a liver disorder; her brother died of cancer at age twenty-one; at age
fourteen, Wuornos was raped by a family friend, and her grandparents, who
were also allegedly physically and verbally abusive, forced her to give up
the child for adoption; and Wuornos turned to prostitution when her
grandfather refused to take her back into his home. 127 Despite this evidence
for potential mental mitigation, the jury in the Mallory case recommended
death by a vote of twelve to zero. 28

The juries in Wuornos' trials, like the juries that sentenced Andrea
Hicks Jackson, were willing to accept the portrayal of Wuornos as
deliberately deceitful, even though this was not necessarily dictated by the
evidence. For example, in its sentencing order against Wuomos for the
murder of Charles Carskaddon, the trial court asserted that "[t]he theft of
Carskaddon's property did not occur spontaneously following the killing.
Miss Wuornos carefully and calculatingly selected this victim, stalked him
and lured him to a secluded area with the intent of killing and robbing
him." 29 On appeal, however, it was noted that this interpretation of events
contradicted Wuornos' confessions, and that there were no other witnesses
to the crime to support the trial court's depiction of the events. 30 In the
Mallory case, the court's task was complicated by the fact that Wuornos
gave different versions of events in successive confessions.' However, it
was well established that Wuornos began working as a prostitute at age
sixteen, and that she started working as a "highway prostitute" in Florida at
age twenty: "Her job was dangerous, she said. On some occasions she had
been maced, beaten and raped by customers.' ' 32 She began carrying a gun
"for protection,"'' 33 not because she was planning to commit robbery or
murder.

The Florida Supreme Court in the appeal from the decision in the
Mallory case allowed the State's use of evidence of similar crimes to rebut
Wuornos' claim that she was "the actual victim' 134 and had acted in self-
defense. The court affirmed that "[t]he State's theory of the case here,

127 id

128 id.

129 676 So. 2d at 971 (citing sentencing order).

130 id

13 644 So. 2d at 1004.

132
id.

131d. at 1003.

114 Id. at 1006. Despite this characterization, one article in support of Wuornos
alleges that Wuornos "said more than 60 times that she acted in self-defense" in her
videotaped confession to the Mallory murder, but that "[nione of these references was
included in the version of that tape which was shown to the jury." The Story of Aileen
Wuomos at http://staff.washington.edu/maggiej/wuornos.htm (visited Oct. 1, 2000).

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2002] Victim or Vamp? 65

which was supported by the similar crimes evidence, was that Wuornos
coldly and calmly planned this killing and did not act out of emotional

,,135frenzy, panic, or a fit of rage. The Supreme Court upheld the trial court's
rejection of the claim of self-defense and its finding of the aggravating
factor of CCP, based on the similar crimes evidence and the fact that
Wuornos had stolen property from some of her victims. 136 Justice Kogan
explained in a special concurrence:

The facts here present two quite different pictures of Aileen
Wuornos. One of these pictures is of a woman who has lived a
horrible life of victimization, violence, and little help from
anyone, who later lashed out at one of her victimizers. The other
is of a cold-blooded killer who lured men to their deaths to steal
their property....

In too many ways our society has yet to confront a serious
problem arising from women who are forced into prostitution at a
young age. ... And once the girl becomes an adult prostitute, she
is labeled a criminal and often is forced into even more crime, as
the only means of supporting herself. Few escape the vicious
cycle. 137

Nevertheless, Justice Kogan agreed that "[w]hether Wuornos were male or
female, the facts remain that the State's theory of this case is sufficiently
supported by the record."' 38 Juries in four separate murder trials were
persuaded by the State's theory, and sentenced Wuornos to death in each.

Despite her confessions to the killings, Wuornos maintains that she
shot the men in self-defense when they attempted to rape her:

I'm supposed to die because I'm a prostitute? No, I don't think
so. I was out prostituting. And I was dealing with hundreds and

135 644 So. 2d at 1008. The State argued that "Wuornos had armed herself in
advance, lured her victim to an isolated location, and proceeded to kill him so she could steal
his belongings." Id.

136 Id. But cf Craig Pittman, Death Row Volunteers Don't Always Get Wish, St.

Petersburg Times, Jan. 4, 1998, at lB, available at 1998 WL 4238955 ([W]hen he admitted
the killing, Knox said later, he crafted his confession to guarantee a death sentence-or so he
believed. Knox told police he choked Barbara Jean Faulkner to death after she bit him during
oral sex. To merit a death sentence, though, Knox should have killed in a calculating manner,
or in a way that was heinous and cruel .... Unless there's some aggravating circumstance
that would lend itself to the state seeking the death penalty, then we have to seek life," said
Assistant State Attorney Glenn Martin, who prosecuted Knox. "He just doesn't meet any of
them.").

117 644 So. 2d at 1012 (Kogan, J., concurring specially) (citing to Report of the
Florida Supreme Court Gender Bias Study Comm'n, 42 Fla. L. Rev. 803, 892-908 (1990)).

13' 644 So. 2d at 1012 (Kogan, J., concurring specially).



Columbia Journal of Gender and Law

hundreds of guys. You got a jerk that's going to come along and
try to rape me? I'm going to fight. I believe that everybody has a
right to self-defend themselves.

139

The Florida Supreme Court in the appeal from the decision in the Antonio
case commented on Wuornos' claim of self-defense: "We recognize that
defendants unschooled in legal niceties may well misuse legal terms of art
such as 'self-defense,' as Wuornos did here . ,,140 Rather than indicating
Wuornos' lack of schooling in "legal niceties," the disjunction between
such "terms of art" and the lived experience of women like Aileen Wuomos
challenges the fairness and adequacy of these legal categories. 41 One
journalist pointed out that Wuornos' working conditions as a prostitute
"became far more dangerous when many of her regular clients were
mobilized for the Gulf War, leaving her to rely heavily on roadside
solicitation.' 142 Another reported:

For Wuomos, her days as a hitchhiking prostitute were like a
battle. Survival was all that mattered.

Brutally raped by some men who paid her for sex, she vowed to
stop anyone else who tried, she said.

"They almost killed me," she said of her seven victims, all
middle-aged, white men killed along Florida highways in 1989-
1990.

"Who's supposed to die? It's a battle. That's the way it is. That's
life. It's that you got a battle between life and death. Whoever
wins, more power to you." 14 3

Wuornos insisted repeatedly: "'What I did is what anyone would do ... I
defended myself.", 144 Multiple juries' condemnations of Wuornos, and their

139 Aileen Wuomos, "America's First Female Serial Killer", Transcript of

Interview for Dateline NBC, Aug. 25, 1992, cited in Miriam Basilio, Corporal Evidence:
Representations of Aileen Wuomos, 55 Art J. 56 (1996), available at 1996 WL 13004923.

140 676 So. 2d at 969.

141 See infra Part II.A.

142 Basilio, supra note 140; see Jenkins, supra note 110, at 683.

143 Cory Jo Lancaster, Irate Wuornos Displays Little Remorse on TV, Orlando

Sentinel, Aug. 27, 1992, at Bi, available at 1992 WL 10624610 (reporting Wuomos's
appearance on Dateline NBC).

144 Chris Lavin, Judge Agrees Wuomos Must Die. St. Petersburg Times, Feb. 2,
1992, at 1B, available at 1992 WL 11010039.

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refusal to mitigate her sentence in light of the totality of circumstances,
reflect not only their rejection of her version of events, but also a reluctance
to empower certain women to defend themselves when those women feel
threatened.

145

Like Ana Cardona, Aileen Wuornos expressed her frustration that
the jury could not understand her situation and was therefore incapable of
judging her fairly.146 Wuornos made clear at various points that she
preferred to waive her rights of appeal and get everything over with:

"I understand everything, and as far as I'm concerned, I'm tired
of the re-electorial scandals of trying to take these cases to court.
And I've got three death sentences already that I'm not going to
get appealed. I got one that may be appealed, very good appeal,
and this one is silly, and I just don't-I know everything.
Guilty."'

147

This apparent futility of meaningful communication with courts perceived
as uncomprehending and even hostile, experienced in an extreme form by
Wuornos, may color the experiences of women-especially minority,
lesbian, or poor women-in the criminal justice system more generally. 148

After Wuornos' trial in the Mallory case, but before her appeal, a
television journalist discovered evidence in easily accessible FBI computer
records that

Mallory had served 10 years in prison for a violent sex crime-a
fact that escaped both Wuornos' prosecutors and defense team.
Instead, prosecutors had told [Dateline NBC correspondent
Michele] Gillen that Mallory was an upstanding citizen without a
criminal past.

145 "The policy and media stress on the singularity of Wuornos as a female serial
killer veils both the routine incidence of violence against women and the potential threat
embodied in Women defending themselves." Basilio, supra note 140.

146 Hugh Davies, America "to end ban on executing women", Daily Telegraph
(London), Feb. 7, 1997, available at 1997 WL 2282739) (recounting that Wuomos told
jurors she hoped they would be raped; elsewhere, she was reported as saying that she hoped
their daughters would be raped).

14 676 So. 2d at 970.

1
4 8 See supra notes 42, 62; on gender and sentencing see, for example, Christopher

S. Alexander, Crushing Equality: Gender Equal Sentencing in America, 6 Am. U.J. Gender
& L. 199 (1997); Kathleen Daly & Michael Tonry, Gender, Race, and Sentencing, 22 Crime
& Just. 201 (1997); Myma S. Raeder, Gender and Sentencing: Single Moms, Battered
Women, and Other Sex-based Anomalies in the Gender-Free World of the Federal
Sentencing Guidelines. 20 Pepperdine L. Rev. 905 (1993); Dorothy E. Roberts, The Meaning
of Gender Equality in Criminal Law 85 J. Crim. L. & Criminology 1 (1994); Andrea
Shapiro, Unequal Before the Law: Men, Women, and the Death Penalty, 8 Am. U.J. Gender
Soc. Pol'y & L. 427 (2000).

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"From the moment this woman was arrested there was this
passion about finding the 'first female serial killer' because she
had confessed to killing men. There was this outrage that this
woman could do this," [said] Gillen ....

Psychologists say Mallory's death-the only one for which
Wuomos stood trial-may have started her killing spree.149

This neglected evidence, and Gillen's description of the typecasting that
made investigators blind to Mallory's own criminal past, shows how
preconceived notions about female normalcy and deviance can overshadow
the potentially significant nuances of a particular case. The use of
stereotypes and typecasting illustrated in the above discussion of the
Wuornos case involves an attempt by attorneys to fit legal arguments into
familiar narrative structures that juries can recognize and comprehend. Such
courtroom shorthands can be destructive when, instead of illuminating
characters and events, they obscure and even distort them.

Like the Cardona case, the Wuornos case demonstrates a lack of
social support and the potential complicity of a lesbian partner with the
police and prosecution; like the Jackson case, it demonstrates the tendency
to view violence by women as the product of deliberate deception rather
than emotional fury or self-defense; and like the Larzelere case, it evidences
the association of greed and female dominance with enhanced culpability.
In all of these cases, the jury was confronted with a reversal of the
conventional dichotomy of man as perpetrator and woman as victim. The
failure of the defendants to argue successfully against the CCP aggravating
factor turned in large part on their inability to portray themselves as fitting
the conventional image of female victimhood.

The Wuornos cases highlight the potentially destabilizing impact of
this role reversal and suggest the broader implications of society's
reluctance to legitimize the use of violence by women. As Wuornos herself
pointed out in a statement she read in 1992, her treatment in the criminal
justice system was "sending society a message that a woman who defends
herself is likely to end up on Death Row ...[T]hey're saying that male
dominance is OK and woe be to the woman who takes action against a
violent man.,,150 Building on this observation, Parts II and III of this Article
explore the potential connection between the societal condemnation of
violence by women and the continued pervasiveness of violence against us.

149 Peter Johnson, "Dateline NBC" Finds Flaw in Serial Killer Case, USA Today,

Nov. 10, 1992, at 3D, available at 1992 WL 8417417.
150 Highway Hooker Sentenced to Death, Courier-J. (Louisville, Ky.), May 16,

1992, at 6A, available at 1992 WL 7836045.

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III. VICTIM OR VAMP?

A. The Double-Edged Sword of Chivalry

The ability to translate the idea of a societal entitlement to execute
the most violent offenders into the actual imposition and carrying out of this
penalty depends largely on a process of "othering" that allows society to
justify taking the life of a convicted criminal. This is true for the state-
sanctioned execution of both men and women. The capacity to identify a
death row inmate as "not one of us" seems intuitively central to the ability
to execute another human being. However, although both women and men
may be the objects of such "othering" techniques, including the use of
stereotypes, there are important differences. The normalization of the
killing of men in war (as opposed to the protection of women and children)
and the broad tendency to identify women, as opposed to men, with
nurturing relationships (and centrally the mother-child bond) contribute to a
greater willingness to execute men than women. The emphasis on the
singularity of violent women suggests a greater, or at least different, role for
condemnatory stereotypes in developing societal justifications for executing
women. 15'

Paradoxically, the pathologization and even demonization of
violent women has emerged alongside a general inability to believe in
women's capacity to commit violent acts. The famous case of Lizzie
Borden, a young woman from Fall River, Massachusetts who was charged
and acquitted in the 1892 axe murders of her father and stepmother,
highlighted the reluctance of a community to convict and punish a woman
for such a brutal crime.1 52 Proponents of the "chivalry thesis" argue that
"women's weak and passive nature makes them less attractive, if not less
eligible, candidates for imprisonment .... Placed in the context of capital
sentencing, this chivalrous attitude towards women manifests itself in a
cultural reluctance to sentence women to death."' 53 Both men and women

151 One news article acknowledges that "[o]bviously, the very rarity of women's

executions makes them newsworthy," but argues that "this is only the statistical
manifestation of the stubborn gender discrimination that taints our attitude about capital
punishment in this country." Cathy Young, Sexism and the death chamber: Chivalry lives
when a woman must die May 4, 2000 (visited Jan,. 28, 2001)
http://www.salon.comlmwt/feature. For a concise and useful overview of research on women
and crime, see Dana M. Britton, Feminism in Criminology: Engendering the Outlaw, 571
Annals Am. Acad. Pol. & Soc. Sci. (2000). For a challenge to the constitutionality of the
death penalty on Equal Protection grounds that focuses on gender disparities in its
application attributed largely to chivalrous attitudes, see Andrea Shapiro, Unequal Before the
Law: Men, Women, and the Death Penalty 8 Am. U.J. Gender Soc. Pol'y & L. 427 (2000).

152 Heidensohn, supra note 4 at 87, discussing R. Sullivan, Goodbye, Lizzie

Borden 193 (1975).

153 Jenny E. Carroll, Note, Images of Women and Capital Sentencing Among
Female Offenders: Exploring the Outer Limits of the Eighth Amendment and Articulated

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Columbia Journal of Gender and Law

defendants are "othered" to a certain extent in order for society to justify
executing them; however, the forms this othering takes and the broader
societal implications it carries seem to be qualitatively different for women.
The corollary of the chivalry thesis is that, when women are condemned
rather than exonerated, they are portrayed as not only cunning and even
demonic, but also-and perhaps above all-unwomanly.

The classic statement of the idea that women enjoy a misguided and
unjustifiable presumption of innocence is Otto Pollack's 1951 The
Criminality of Women, in which he argued:

[W]omen's crimes are underreported .... [because] women tend
to be inherently more deceitful and cunning than men, thus
making them more effective at concealing their crimes ....
[E]mbarrassment may cause victims of female offenders to be
less likely than victims of male offenders to report their crimes to
the police . . . [, and] the police and other law-enforcement
personnel, acting out of protectiveness or a misguided notion that
women do not commit crimes, are likely to be more reluctant to
arrest female offenders.154

The idea that women are incapable of committing violent crimes is just as
distorting as the notion that their supposedly inherent deceitfulness
predisposes them to certain forms of criminality. When sex-role
stereotypes prevail over context-specific reasoning, the application of
justice is likely to be skewed.

The chivalry thesis colors societal attitudes towards and
interpretations of violence by women, as evidenced by numerous
commentaries on the subject.' 5 The ability of women to commit serial

Theories of Justice. 75 Tex. L. Rev. 1413, 1418-19 (1997). See also Julie Hauserman, State's
will to execute women is put to test St. Petersburg Times, March 28, 1998, at IA, available
at 1998 WL 4253910; Laura Mansnerus, When women commit crimes, might sexism come
in handy?, Austin Am.-Statesman, Nov. 21, 1997, at H7, available at 1997 WL 2847445
("'There's a tendency to believe in female innocence,' sa[ys] Cathy Young, a researcher at
the Cato Institute and vice president of the conservative Women's Freedom Network, who
argues that offenders who are women are treated more leniently than men."); Tina
Rosenberg, Dead woman walking. Harper's Bazaar, Feb. 1, 1996, at 110, available at 1996
WL 9826895.

1
5
4 Boritch, supra note 19, at 31. For a more recent version of the second argument,

see Coramae Mann, When Women Kill 5 (1996), citing A. Rosenfeld, When Women Rape
Men: The Body. 28 Omni 194 (1983); Rosenfeld writes: "[How reluctant] would be the man
who is the victim of sexual assault by gunslinging or knife-wielding women? Would such a
man choose to test the credulity of the police or even his closest friends? 'I was raped by two
women last night' may not fall in the same category as 'I was taken aboard a UFO by little
green men,' but the inherent implausibility of the claim might restrain even a braggart."

155 See, e.g., Kahler, supra note 80, at FI ("People have always been reluctant to

execute women because everyone could see their wife or mother or daughter. Men have been
protective of the female gender," said Watt Espy, a death penalty historian in Montgomery,
Ala. "But that is changing. Feminists and women who want to take charge and control are

[Vol. 11: 1



Victim or Vamp?

murders as a "ramification of feminism ' 56 appears both subtly and more
explicitly in discussions of women and crime. For example, two
commentators note in a preface to one criminological study that "[w]omen
have moved out of traditional roles and have become a major force in the
workplace. This change has resulted in the growth in female participation in
crime .... 57 Another study notes that "[b]oth the national distributions
and the rankings of female arrests for assault in California, Florida, and
New York State suggest not only that women are committing an impressive
number of assaultive crimes, but also that such arrests are increasing at a
faster rate than those of men.,, 158 The adjective "impressive" suggests a
certain fascination with and even qualified admiration for women who are
powerful and assertive enough to commit this kind of crime. In addition, the
slippage between statistics on the actual commission of crimes (which can
of course never be measured completely) and arrest rates (which are already
filtered through the exercise of police discretion) demonstrates the mutually
reinforcing link between the public perception of the growing capacity of
women to commit assaultive crimes and the statistical corroboration of this
perception of change.

The interrelationship between rising perceptions of women's
capacity for violence and the increase in female arrest rates suggests a link
between the normalization of violence by women and the feminist agenda
of empowering women across all spheres of public and private activity. 59

The potentially disruptive social consequences of a feminist agenda that
includes the liberation of women to commit violence, and the corresponding
willingness of society to use increasingly violent means of social control,
has contributed to an "equality argument" to justify executing women.
Elements of this argument surface in references to familiar imperatives of
the women's movement. For example, one journalist reports that "[d]eath
penalty historian Watt Epsy is certain death sentences for women will
increase as it becomes an 'equal opportunity employer.' . . . [I]f women

rapidly eroding the protective spirit men have felt for women."); see also Kathryn Kahler,
Women on Death Row: A Chilling Sign of the Times, The Plain Dealer (Cleveland), May
26, 1993, at IA, available at 1993 WL 4293406 ("The cases that are clear, [Cleveland State
University professor Victor] Streib said, are those in which a woman commits a particularly
heinous crime, 'one that is truly shocking, bloody, gory-a crime like a man might commit."')
(emphasis added).

156 Janet Warren, a professor at the University of Virginia in Charlottesville, quoted

in Experts tag convicted California landlady as unusual serial killer, Las Vegas Rev.-J., Aug.
29, 1993, at 4B, available at 1993 WL 4501413.

157 Leslie W. Kennedy & Vincent F. Sacco, Preface to Boritch, supra note 19, at xi

(emphasis added); see infra Part Ill.

158 Mann, supra note 156, at 7 (emphasis added).

9See infra Part III.

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72 Columbia Journal of Gender and Law [Vol. 11: 1

want to be treated like men, then let's treat them like men in all respects."' 60

Ironically and unselfconsciously embedded in this plea for gender neutrality
is the persistent assumption that those who make, apply, and enforce the
law-the "we" behind the "let's" in Epsy's statement-are and will
continue to be men.

B. The Battered Women's Syndrome and the Feminist Catch-22

The narratives of violence constructed during criminal trials reflect
and reinforce societal understandings about appropriate behavior. Societal
interpretations of and attitudes towards the use of violence by women in one
context may carry over into other situations. For example, the acceptance of
a provocation defense to first-degree murder harkens back to the male ritual
of organized duels. Men are expected, if not encouraged, to defend their
honor and express their rage through violence. This expectation and
understanding of certain uses of physical violence by men, even if it does
have limits, rarely if ever extends to the use of physical violence by women.
If the use of violence is only excusable given a particular story about the
defendant, then it follows that whatever story is told about a given use of
violence will reflect on the defendant more broadly, and also on the social
group to which he or she belongs. The implications of these connections
may argue against automatically embracing any theory of criminal
(ir)responsibility that excuses the use of violence by women, even in limited
situations. Anne Coughlin articulates this dilemma:

[I]f . . . the reigning theory of responsibility declares that an
excused offender is less than a full human being, we must
consider whether the practice of excusing women is bringing to
law a feminist theory of responsibility or whether it is exploiting

160 Kahler, supra note 80, at F 1; see also Last Dance (Touchstone Pictures 1996)

(dialogue between two men driving to prison):

RICK: But I mean, her crimes, you don't think of a-woman committing a crime
like that, I mean I don't anyway-that, that brutal.

SAM: Most of the time a woman kills, it's a crime of passion. Usually her husband
or her boyfriend.

SAM: A lot more women are going to be executed now.

RICK: Why's that?

SAM: Women's lobby. (Taking out a cigarette.) They all want equal treatment in
the eyes of the law. (Chuckles.)



Victim or Vamp?

and, thereby, reproducing norms that support the conditions of
our subjugation. 6 '

Lenore Walker, one of the leading developers and exponents of the battered
woman syndrome defense, faces the accusation that she "accepts as given
the patriarchal categories dictated by the criminal law and then uses her
expert training to explain that women really are what law always has
constructed them to be: passive, helpless, childlike, and irrational.' ' 162 More
generally, it has been observed that, for the battered woman syndrome
defense to succeed, "the woman herself must be presented as a passive
victim of her own dysfunctional personality. 163 Instead of empowering
women to use violence to defend themselves, excuses based on syndrome
evidence that emphasizes the loss of control or capacity for rational
perception may intensify, rather than counter, the victimization and
disempowerment of women: "In the newly constructed popular stereotypes,
female victims of rape, harassment, and domestic violence are depicted as
totally consumed by male domination, the antithesis of autonomous human
beings."'164 The lack of effective moral agency is the hook to which the
battered woman syndrome defense attaches itself.

Societal expectations and understandings of the use of violence
play a key role in the structure and outcomes of criminal trials. In the first
instance, the ability of a jury to empathize or identify with an individual's
conduct also affects the perception of which players occupy the roles of
aggressor and victim in a given confrontation. This phenomenon has been
analyzed most extensively in relation to the use of violence by battered
women in both confrontational and non-confrontational situations. In the
1990 case R v. Lavallee, the Canadian Supreme Court wrote:

161 For an analysis of a similar problem in relation to the marital coercion defense,

see Anne M. Coughlin, Excusing Women, 82 Calif. L. Rev. 1, 32, 44 (1994);, Excusing
Women 82 Calif. L. Rev. 1, 32, 44 (1994); see also Mansnerus, supra note 150, at H7.

162 Coughlin, supra note 164, at 56 n.276; see also Lloyd, infra note 172, at 102-03

("To be content with women pleading diminished responsibility is to be content with women
continuing to be defined in terms of their inherent instability and not in terms of rational
adults responsible for their actions. The defence of diminished responsibility fits neatly
within the old biological determinist explanation of strange female behaviour.") For a list of
the range of crimes for which the battered woman's syndrome has been offered as a defense,
see Coughlin, supra, at 55 n.274.

163 Elizabeth Comack, Women in Trouble 151 (1996).

'6 Martha Chamallas, Introduction to Feminist Legal Theory 102 (1999); see also
id. at 105 ("The paradox for feminists, however, has been the tendency of some courts and
attorneys to interpret this syndrome evidence in a highly conservative fashion, that is, as
evidence reinforcing women's incapacitation and passivity in the face of male violence....
The challenge is to find a way to express the agency of a battered woman without blaming
her for not extricating herself from the abusive situation."); id at 250-64.

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Columbia Journal of Gender and Law

If it strains credulity to imagine what the "ordinary man" would
do in the position of a battered spouse, it is probably because men
do not typically find themselves in that situation. The definition
of what is reasonable must be adapted to circumstances which
are, by and large, foreign to the world inhabited by the
hypothetical "reasonable man."1 65

This statement amplifies the intuition articulated thirteen years earlier in the
American case, State v. Wanrow, which identified a gender-blind
reasonableness standard in the context of a violent confrontation as a
potential equal protection violation:

The impression created-that a 5'4" woman with a cast on her
leg and using a crutch must, under the law, somehow repel an
assault by a 6'2" intoxicated man without employing weapons in
her defense, unless the jury finds her determination of the degree
of danger to be objectively reasonable-constitutes a separate
and distinct misstatement of the law and, in the context of this
case, violates the respondent's right to equal protection of the
law.

166

In justifying self-defense by battered women, the crucial distinction is
generally not that between the perceptions of the "reasonable large person"
and the "reasonable small person," but rather that between the "reasonable
man" and the "reasonable (battered) woman." In these cases, differences in
physical strength, psychological attitudes towards the use of violence, and
prior life experiences are generally viewed as "sex-categorical"--that is,
intrinsic to sex, regardless of the particular individual in question-when
they are used as the basis for a defense to criminal charges.

The idea of violent self-defense by abused women as a rational
response to an extreme situation is of relatively recent vintage. According to
one author, up until the late 1970s, most women charged with homicide
after killing their abusers either pleaded guilty, or pleaded not guilty by
reason of insanity. 167 The battered woman syndrome defense differs from
the defense of insanity in that it involves placing the trier of fact in the
defendant woman's shoes and asking the question: Was this woman's
conduct reasonable in light of the totality of circumstances, and, most
importantly, given her history of abuse? The battered woman syndrome
posits a psychological response to abuse that alters a woman's calculus of
the possibility of escape or retreat, the imminence of danger, and the degree
of force necessary to eliminate effectively the perceived threat (crucial

165 Boritch, supra note 19, at 245, citing R. v. Lavallee I S.C.R. 852 (1990).

166 State v. Wanrow, 88 Wash. 2d at 221 (1977).

167 Cathryn Jo Rosen, The Excuse of Self-Defense: Correcting a Historical

Accident on Behalf of Battered Women Who Kill, 36 Am. U. L. Rev. 11, 37 n.150 (1986).

[Vol. 11: 1



Victim or Vamp?

elements in the traditional self-defense framework). However, the
description of this altered calculus as a "syndrome" carries somewhat
paradoxical implications: "There is an inherent inconsistency in arguing
that a person whose perceptions are altered by a psychologically identifiable
syndrome is nonetheless reasonable with respect to conduct related to the
syndrome."'168 Even with an increased awareness of and sensitivity to the
experiences and perceptions of women, the requirement of reasonableness
imposes certain limitations on society's characterization and comprehension
of particular uses of violence. 169

Feminist advocates of the battered woman defense focus on its
utility in providing women with a choice, rather than on its implicit (and
even explicit) negation of the defendant's decision-making capacity: "[T]he
emerging battered women's defense would give women the right (one men
have had for centuries) to choose self-protection as an alternative to
tolerating severe physical abuse or facing homicide charges.' 70 However,
the perception of this alternative as a legitimate choice is not universally
shared. Elements of the chivalry thesis resurface in popular reactions to the
battered woman syndrome defense: "No one thinks abusive backgrounds
should excuse men's criminal acts-whether such men are wife-batterers or
Charles Manson. But for women, the 'poor little me' defense is almost as
good as a get-out-of-jail-free card .,,17 Does this reaction express a valid
concern, or is it symptomatic of an exaggerated fear of sanctioning the use
of violence by women? 172

As with the "othering" process noted above, the claim here is not
that men with abusive backgrounds are not also done a disservice by the
lack of adequate social protection and support. Nor is it that women should

16 1Id. at 15.

169 For an analysis of a similar problem in relation to the marital coercion defense,

see Coughlin, supra note 164; for an explicit analogy between the marital coercion defense
and the battered woman's syndrome defense, see id. at 49. See also Ann Lloyd, Doubly
Deviant, Doubly Damned: Society's Treatment of Violent Women 94 (1995) ("As the law of
self-defence evolved, it stressed that the attack must make one fear for one's life, and that the
force used to repel the attack must be proportionate, i.e. comparable, not excessive, which
fits with a scenario of two grown men fighting each other .... Although some do, in general
women do not meet force with force. We're brought up to please and placate, to avoid
confrontation, anger and certainly fighting, not to react with a similar show of instant
aggression.")

170 Nicole Hahn Rafter & Frances Heidensohn, Introduction to International

Feminist Perspectives in Criminology: Engendering a Discipline 8 (Rafter & Heidensohn
eds., 1995); see Coughlin, supra note 164, at 8 n.20 for a list of cases in which male
offenders have been able to raise the "battered person syndrome" defense.

171 Donna Laframboise, Sugar and spice not so nice Globe & Mail (Toronto Can.),

Oct. 11, 1997, at DI8, reviewing Patricia Pearson, When She Was Bad: Violent Women and
the Myth of Innocence (1997).

172 For references on gender and sentencing, see supra note 145.

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Columbia Journal of Gender and Law

be indiscriminately encouraged to engage in violent self-help. However,
there seems to be a qualitative difference between the reactions to violence
by women and that by men, stemming both from the relative infrequency of
the former, and from a seemingly widespread perception of the
disproportionate social disruptiveness of violence by women: "[Y]ou don't
hear judges agonizing over whether men acquitted of killing wives are
being given a licence to kill, whereas they do express such doubts in the far
fewer cases involving women who kill men.' 7 3 By portraying certain
women who commit violent acts as victims, the law may be more
accurately capturing these women's life experiences. But there is also a
darker underside to this defense strategy: namely, the concurrent
downplaying and even denial of women's moral agency and capacity for
rational choice, even if those choices do not conform to social expectations.

Because judges and juries seem understandably reluctant to
sanction too many variations on the self-defense justification, 74 defenses
including the partial defense of provocation and the excuse of the battered
woman syndrome depend on the successful portrayal of the defendant as
incapable of exercising the faculty of moral choice. This narrative may be
difficult to construct in situations involving domestic abuse, where women
exhibit a combination of coping behavior on the one hand, and lack of
control on the other; moreover, in such situations, the supposed loss of
control (in committing an act of defensive, preemptive, or retributive
violence) may in fact be part of a more complex coping strategy: "Feminist
litigators in harassment suits, like those in domestic violence litigation, face
the difficulty of breaking through the dichotomy [between female agency
and female helplessness] and persuading judges and juries that coping
behavior is not inconsistent with victimization.' 75 Unless and until women
receive a legal sanction to engage in self-help practices involving the use of
violence (a radical idea, but one that is not completely without foundation
given the absence of effective state responses to many situations of abuse),

173 Lloyd, supra note 172, at 75.
174 On justification and excuse in the context of heat-of-passion killings, see Joshua

Dressier, Rethinking Heat of Passion: A Defense in Search of a Rationale 7 J. Crim. L. &
Criminology 421 (1982).

175 Chamallas, supra note 168, at 106. For possible alternative solutions, see Lloyd,
supra note 172, at 107 ("Perhaps the most comprehensive attempt to capture women's
experiences within the law is contained in the proposal by the Rights of Women (ROW): that
a new partial defence to murder, that of self-preservation, be created. It would be of
comparable standing to the partial defences of provocation and diminished responsibility.");
see also id. at 108. Lloyd suggests that the pathologization of women's behavior is a direct
result of a social hierarchy dominated by men: "It is women's reproductive biology which
defines them as other than men. If women constituted the ruling powers that be in our society
there'd probably be no hormonal theory of women's behaviour, only an easily accepted and
widely acknowledged explanation of male behaviour based on fluctuating levels of
testosterone, and psychic wounds caused by not having vaginas and depth and internal
power, only penises and scrotal sacs." Id. at xvii.

[Vol. 11: 1



Victim or Vamp?

defendants will have to portray themselves as victims in order to avoid
condemnation and punishment. Whether a defendant in this situation is
exonerated or condemned depends largely on whether she is perceived
predominantly as a victim or a vamp. 176

IV. FEMALE AGENCY AND THE USE OF PUNISIIMENT AS A
MEANS OF SOCIAL CONTROL

The criminal justice system serves not only to define and punish
specific criminal acts, but also to establish more general parameters for
acceptable and deviant behavior in a given society.' 17 Control and
condemnation track each other closely, as the stigmatization of criminal
conduct is meant to reinforce and to enhance the deterrent value of the
law.178 As a corollary, defenses to criminal charges that portray the
defendant's conduct as either excused or justified carry with them an
imprimatur of societal toleration, if not endorsement. 79 As suggested in the
above discussion of the battered woman syndrome, the societal implications
of accepting a particular criminal defense can go far beyond the question of
what penalty is appropriate for a particular individual's behavior. The
implicit social stereotypes underlying the condemnation or exoneration of
criminal defendants have a cumulative effect in reinforcing and propagating
images of normalcy and deviance. The outer limits of the latter category
are, in part, defined by the imposition of the death penalty.180

The perceived connection between an individual's capacity for
criminal responsibility and her degree of moral agency, highlighted in
feminist criticisms of the battered woman syndrome defense, resurfaces in
discussions of the death penalty:

176See Lloyd, supra note 172, at 93, citing Helena Kennedy, Eve was Framed 215

(1992) ("Justice is likely to remain a lottery while so much depends on the woman's
fulfillment of society's expectations. One of the factors which undoubtedly affects the
outcome of murder trials is, as always, the persona of the woman in the dock .... Women
who conform to the conventional image of the cowed victim fare better than those who come
to trial angry that they are being blamed for what ultimately took place.")

177 For a discussion of trials as a boundary-maintaining device that broadcasts and
reinforces social norms, see Lawrence M. Friedman, Law, Lawyers, and Popular Culture, 98
Yale L.J. 1579, 1594 (1989).

17 See, e.g., Nathaniel Hawthorne, The Scarlet Letter (1850); Marina Angel, Susan

Glaspell's Trifles and A Jury of Her Peers: Woman Abuse in a Literary and Legal Context,
45 Buffalo L. Rev. 779 (1997).

179 See supra note 173.
180 See Carroll, supra note 150, at 1415-16 (describing capital punishment as "the

extreme of the criminal justice system, where society collectively defines the outer limits of
unacceptable behavior").

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Columbia Journal of Gender and Law

Viewed in its theoretical context, if the death penalty serves as
the ultimate sanction to vindicate violations of the values and
rights society chooses to protect, a scarcity of women on death
row would seem to indicate the tradeoff women make between
full moral, social, and legal stature and certain social
protections.18 l

As suggested in Part II, the chivalry thesis and the battered woman
syndrome can both be seen as predicating judicial lenience on a certain
conception of female helplessness. The sensationalist stereotyping of
women who commit particularly violent crimes illustrated in Part I
compounds the dissociation between "normal" womanhood and the use of
violence. This, in turn, reinforces a more general tendency to exclude
women from the socially acceptable use of physical force. Such exclusion
cannot help but shape women's self-understandings and feelings of physical
security, and potential attackers' expectations of resistance or retaliation by
women in the context of an assault.

This line of reasoning follows the concerns articulated by feminist
criminologists: "Traditional criminology has mainly asked how to achieve
crime control. Feminists have asked how crime control achieves gender-
how control systems have tended to view criminology itself as a tool for
reinforcing inequality."' 82 The operation of the criminal justice system as "a
tool for reinforcing inequality" can occur formally: first, through the ability
or inability of a particular legal paradigm (such as self-defense) to
accommodate the lived experience of those whose behavior it sanctions or
condemns; and second, through the receptiveness and responsiveness of law
enforcement mechanisms to the needs and experiences of the people. Hence
the observation that "female criminality cannot be conceptually or
practically separated from the issue of female victimization .... For many,
if not most, female offenders, criminality and victimization are not discrete
phenomena, but rather constitute a continuum of experience."' 8 3 This
phenomenon was evident in the cases of Aileen Wuornos and Andrea Hicks
Jackson described above. The argument here is not that past experiences of
abuse should in any way create a license to kill, or even the presumption of
an attacker's moral superiority over the object of her violent act. But it does
suggest that snapshots that lead us to label one individual the "victim" and
the other the "aggressor" may, by virtue of being confined to a very limited
time frame, convey an oversimplified picture that fails to take into account
the ways in which the aggressor has experienced victimization, either by

"' Id at 1418-19.
192 Rafter & Heidensohn, supra note 169, at 11.

183 Boritch, supra note 16, at 6; see also id at 75-76. Prior experiences of abuse are

common among women in prison; Comack, supra note 167, at 39.

[Vol. 11: 1



2002] Victim or Vamp? 79

private individuals, or through the action, or more often inaction, of the
state.

The criminal justice system also entails a more informal norm-
enforcing component, namely, the operation of and interplay between
popular images and public opinion. The intense media reactions to women
on death row because they are women illustrates that, within the general
societal abhorrence for murderous acts of violence, there seems to be a
particularly strong reaction against (often manifested in a peculiar
fascination with) the commission of violence by women: "Amongst ... all
[of these images of violent women], there is no conception of the 'normal'
exuberant delinquency characteristic of males. 18' 4 As suggested above, this
phenomenon seems related to, and in part responsible for, the general
tendency for violent aggression to be associated with men, while physical
vulnerability is considered more characteristic of women. Lived experience
suggests that one implication of viewing violence by women as particularly
deviant or exceptional is that many women live with the everyday fear of
being attacked by a man, from being afraid of walking alone at night, to not
wanting to work late shifts, to feeling uncomfortable in isolated public
places where attacks could occur, to feeling insecure at home where the
state remains loath to intervene to protect women from violence by male
intimates."'5

This background condition, highlighted in the legislative hearings
leading to the passage of the Violence Against Women Act, 8 6 manifests

1s Heidensohn, supra note 3, at 95; see Coughlin, supra note 164, at 3 n.5 (listing
appellate opinions whose language emphasizes that violent women are especially
transgressive and dangerous to society).

1
8 5 See Boritch, supra note 16, at 8 ("Victimization research has consistently shown

an apparent paradox: while women are less often victims of crime than men, they express
greater fear of crime than men. Women's fear of crime has the obvious consequence of
restricting their freedom and activities and, more generally, of adversely affecting the quality
of their lives.... It is becoming increasingly apparent that past victimization research has
greatly underestimated women's vulnerability to these forms of male violence [sexual assault
and spousal assault], and that women's fear of crime is more objectively based than
previously imagined.") See also Katherine Dunn, Just as fierce 19 Mother Jones 34 (1994),
available at 1994 WL 12802206 ("Women believe they are helpless against male
aggression; criminals see women as vulnerable."). Heidensohn, supra note 3, at 182 cites
Susan Brownmiller Against Our Will 15 (1973): "[Rape and the fear of it] is nothing more or
less than a conscious process of intimidation by, which all men keep all women in a state of
fear."

1s6 See, e.g.,Violence Against Women Act: Hearings on H.R. 1133 Before the

Subcomm. on Civil and Constitutional Rts. of the House Comm. on the Judiciary Nov. 16,
1993 (statement of Sally Goldfarb, Senior Staff Attorney, NOW Legal Defense and
Educational Fund); see also Boritch, supra note 16, at 218, citing Canadian Panel on
Violence, Final Report of the Canadian Panel on Violence Against Women 5 (1993)
("Women live in a social milieu textured by inequality, a reality that leaves them vulnerable
to violence. As long as women have unequal access to choice and freedom, as long as
women live with the fear of violence, their options will be restricted, their movement
curtailed and their lives vitally affected."').



Columbia Journal of Gender and Law

itself in a variety of subtle but telling ways. For instance, the author of a
book on feminist criminology recalls her reaction to hearing about an
upcoming conference entitled "Perspectives on Female Violence":

Only when Louise [Chunn, editor of The Guardian's women's
page] rang me to say she was interested in a story about female
violence did I realize that we were talking about women who
committed violent acts, not women who had violence done to
them. I had been so conditioned by my unconscious assumption
that women are never violent that I had completely failed to
comprehend the conference's title. 18 7

Feminist criminologists offer a critique of "traditional" criminology,
focusing on the frequent marginalization and even exclusion of women
from studies of both criminals and victims. 88 This is clearly more than just
a methodological issue: How we measure, study, and understand criminals
and their victims is inextricably bound up with the normative and
ideological framework within which we comprehend societal interactions as
a whole.

Criminal convictions are one mechanism through which the state
establishes the limits of acceptable behavior and asserts its control over
those who violate societal norms. In a democratic system, "the people" are
the legislators, but they charge the criminal justice system (composed of
prosecutors, judges, the police, etc.) with interpreting and enforcing these
behavioral limits. Defenses to crimes transfer some of the prerogatives for
defining behavioral standards back to the individual in certain exceptional
circumstances. While some defenses, such as self-defense, permit
individuals to protect themselves in limited situations where the state is
unable to do so, 189 others, such as the provocation defense, empower
individuals to override the normative framework constructed by the state in
favor of their own subjective, and even fleeting, conceptions of what is right
and wrong in a given situation. Victoria Nourse writes:

Precisely because [the provoked killer] asks us to embrace [his]
emotional judgments [of blame], he asks us to embrace him as a
legislator, as one who rightly sets the emotional terms of blame
and wrongdoing vis-a-vis his victim. . . . [W]hen a defendant
responds with outrage to conduct society protects, he seeks to
supplant the State's normative judgment, to impose his individual

187 Lloyd, supra note 172, at x.

188 See Heidensohn, supra note 3, at 124, 152.

189 As noted above, the state being "unable or unwilling" to protect an individual

might be a more appropriate predicate for self-help in certain situations.

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vision of blame and wrongdoing not only on the victim, but also
on the rest of us. 190

Building on this idea, one could suggest that the reluctance of the existing
criminal justice system to embrace certain gender-specific defenses to the
use of violence by women reflects, at least in part, a broader societal
discomfort with the idea of women as "legislators"--as the arbiters of
moral blameworthiness in loco governmentis. (Women may also be
perceived as the "standard-bearers of morality, but it is a morality that has
historically been created and controlled by men.) The problem is that many
aspects of the criminal justice system as it stands are not sufficiently
sensitive to the complex interaction between societal attitudes about sex-
appropriate behavior and the allocation of criminal responsibility. We need
to engage in consistent and sustained attempts to evaluate critically our
embedded assumptions and to challenge the ways in which these become
enshrined in and perpetuated by judicial and other institutions. As it stands,
and as many have observed, important aspects of the administration of
criminal justice operate within, and contribute to, a gender-biased status
quo.

191

Why might violence by women be considered more threatening to
or subversive of the social fabric than violence by men? Of course, the huge
number of men in America's prisons shows that violence by men is also
considered dangerous, but it is rarely viewed as unseemly and shocking, the
way violence by women tends to be portrayed by prosecutors and the
media. One possible explanation is that "[s]ocial relationships are the basis
of normative order in society and it seems to be agreed that women do
much of the work of succouring and sustaining those relationships; ' '192 in
other words, women are perceived as integral to creating and preserving the
social fabric, leading to fears that if women start subverting social order
there will not be much order left. Another view considers women inherently
subversive and dangerous: "witches are women; all women are potential
witches. . . . Women are feared as a source of disorder in patriarchal

19'Nourse, supra note 45, at 1393.
191 These entrenched disparities may not be as explicit as they once were, but their

implications remain insidious. A particularly blatant example of explicit gender bias can be
found in a nineteenth-century statement by the Royal Commission on the Contagious
Diseases Acts: "We may at once dispose of [any recommendation] founded on the principle
of putting both parties to the sin of fornication on the same footing by the obvious but not
less conclusive reply that there is no comparison to be made between prostitutes and the men
who consort with them. With the one sex the offence is committed as a matter of gain; with
the other it is an irregular indulgence of a natural impulse." Heidensohn, supra note 3, at 35,
citing K. Thomas, The Double Standard 20 J. Hist. Ideas (1959). Self-awareness is all the
more important as such attitudes, though persistent, tend to be trumpeted less loudly, such
that one is more likely to encounter their effects than their enunciation.

192 Heidensohn, supra note 3, at 168.

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society."' 93 In the contemporary United States, one need only think of
public uneasiness about Hillary Rodham Clinton's perceived overreaching
as a dynamic and self-assured First Lady actually interested in shaping
public policy; her adoption of her husband's last name during his
Presidential campaign was only one concession to the public demand for
conformity to traditional sex roles that continue to place restraints on
women's participation in the public sphere, notable exceptions such as
Madeleine Albright notwithstanding. 194

The image of women as soft, nurturing, and in need of protection is the flip-
side of the potential for social destabilization once this illusion is broken.
Employing norms of passive femininity in order to restrict women's ability
to use physical force reinforces a gender hierarchy dominated by men. 95

One journalist recounts an inspector's reaction to the charging of two
teenage girls with manslaughter in Canada:

[Inspector John McFadden, commander of the major-crimes
section of the Calgary police] said that when adults see a girl
flagging them down on the side of the road, they feel they ought
to pick her up to protect her. When society sees that same girl
charged with killing the man who set out to save her, the effect is
crushing. "It's a loss of innocence for Calgary," Insp. McFadden
said.' 96

A similar reaction of disbelief, dismay, and even nostalgia, which is
accompanied by a sense of foreboding and apprehension, could be detected
in other responses to violent crime:

[Psychologist Fred Mathews, director of research and program
development at Central Toronto Youth Services says that] "if
we're going to get serious about the study of violence, we have to
come to the conclusion that girls can be just as violent and in
some cases even more vicious than boys." Metro Police Detective
Constable Brian Keown agrees . . . "They're women of the

'93 Id. At 92, citing C. Lamer, Enemies of God 92-93 (1981); see generally Carol
F. Karlsen, The Devil in Shape of a Woman: Witchcraft in Colonial New England (1987).

194 For an editorial comment on this phenomenon, see Chim~ne Keitner, Seduced

by stereotypes, we put strong women on trial Providence Journal-Bulletin, June 27, 1996,
(Hers) at 15. Interestingly, the editors of this newspaper decided to print this article, which
criticizes the uncritical resort to sex-role stereotypes in a local murder trial, in the "women's
section" of the paper.

'95 Id. The association of women with destructive power is embedded in popular

imagery and mythology, from Circe and Medea to Delilah and Eve.

196 Boritch, supra note 16, at 40, citing Alanna Mitchell, Stabbing Death of Janitor
Galvanizes Calgary: Three Teen Girls Arrested, Two Charged with Manslaughter, The
Globe and Mail (Toronto Ca.), July 12, 1995, at Al (emphasis added).

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nineties and they're asserting themselves in a very violent
way."' 197

The articulation of perceived connections between female aggression and
viciousness, and between women's empowerment and violence, suggests a
deeper sense of unease about the changing role of women, and about the
subversive potential of this transformation as women prove themselves
capable of being just as violent as men.

The figure of the femme fatale, a recurring image in mythology,
literature, and other forms of art and popular culture, captures the
simultaneous fascination with and fear of powerful, and potentially violent,
women. 198 The sexualization of female dominance is built into this system
of imagery. 99 For example, the 1961 paperback edition of Otto Pollack's
treatise on The Criminality of Women has "a binding with a crudely-
coloured illustration of a witch beating a kneeling man.'20 0  In the late
nineteenth century, Lombroso and Ferrero, authors of The Female Offender,
asserted that, "[a]s a double exception, the criminal women is consequently
a monster-her wickedness must have been enormous." 20 1 The perceived
exceptionality of violence by women may serve as a partial buffer to
criminal convictions, but it also amplifies and exacerbates the societal
condemnation and demonization of violent offenders who are women.

Implicit sex-based differences in societal norms and expectations
become explicit in discussions of violence by women. For example, Aileen
Wuornos's case elicited the following observations:

197 Boritch, supra note 16, at 40-41, citing Isabel Vincent, Girl-Gang Violence
Alarms Experts The Globe and Mail (Toronto Ca.), Sept. 12, 1995, at A9 (emphasis added);
on the perceived link between feminism, the empowerment of women, and violence, see
infra text accompanying note 156.

198 See, e.g., Bram Dijkstra, Idols of Perversity: Fantasies of Feminine Evil in Fin-

de-Sicle Culture (1986); Mary Ann Doane, Femmes Fatales: Feminism, Film Theory,
Psychoanalysis (1991).

199 See generally Camille Paglia, Sexual Personae: Art and Decadence from

Nefertiti to Emily Dickinson (1990).

200 Heidensohn, supra note 3, at 118. As mentioned above, Pollack developed the
idea that women were in fact grossly underrepresented among convicted criminals because
of the deceitful and subversive natures of their crimes. "'[Flor women deceit ... (is) ... a
socially prescribed form of behaviour.' This is because women can fake an orgasm and still
have sex whereas 'man must achieve an erection in order to perform the sex act and will not
be able to hide his failure."' Id. at 120, citing Otto Pollack, The Criminality of Women I1
(1961); see supra note 156 and accompanying text.

201 Id. at 112, citing C. Lombroso & W. Ferrero, The Female Offender 152 (1895)

(emphasis added). See the comment by Aria Cardona's defense attorney cited in O'Shea,
supra note 8, at 128, that "As the case unfolded, it became clear that Ana was going to be
held up to our community as a monster."

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In many respects, Wuornos, a bisexual prostitute whose alleged
victims had picked her up for sex, fits the profile of a male killer.

"She has the characteristics we see with our male killers," said
John Douglas, unit chief of behavioral sciences for the FBI at
Quantico, Va. "Like many of our male killers, she comes from a
very dysfunctional background where she was abused, physically
and sexually. But usually women from that kind of background
internalize the abuse and their feelings. While the men turn to
aggression, the women turn to alcohol, drugs, prostitution and
suicide. 20 2

Society punishes the externalization of trauma created by abuse as part of a
system of deterrence and retribution that proscribes inflicting harm.

However, it is unclear that internalizing abuse is ultimately preferable,
either for the individual or for society as a whole. Identifying who is the
victim and who the aggressor in a given confrontation enables us to
determine who should be protected, and who should be punished.
Complications arise when, by tracing events back in time to get a fuller
picture of individuals' backgrounds and prior interactions, the bright-line
distinction between these two positions may become blurred, or even
reversed.

As noted above, the chivalry thesis assumes that, in a confrontation
between a man and a woman, the woman is likely to be the victim. On a
literal level, the chivalry metaphor suggests that a woman cannot, and
perhaps even should not, defend herself: she must wait for a man to come to
her aid or rescue.20 3 The family is one site for the indoctrination and
perpetuation of this norm of non-resistance; 2

0
4 the courts may be another.

Criminal trials can be viewed as boundary-maintaining devices in which
society establishes and enforces general patterns of behavior, not only by
sanctioning particular violations, but also by sending implicit and explicit
signals about the social acceptability of certain types of conduct. If "for
women to defend themselves is still perceived as inherently

202 Alison Bass, Women as serial killers, Strangers usually not the victims, News &

Observer (Raleigh, NC), June 14, 1992, at E4, available at 1992 WL 8017320; see also
Neva Chonin, Making Art From a Blighted Life, S.F. Chron., June 13, 1999, at 35, available
at 1999 WL 2688949.

203 Some have considered the possible origins and implications of this restriction

on self-help: "[T]he mythology of females as essentially non-violent grew out of a profound
impulse to give special protection to the bearers of future generations-a sort of gender
version of the non-combatant status of medics and Red Cross workers. But the problem is
the same for all non-combatants, whether in wartime or danger-ridden peace: You can still
get hurt, but you're not allowed to fight back." Kahler, supra note 80, at Fl.

2
04 See, e.g., Bass, supra note 201, at E4.

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transgressive, '2 °5 then we need to ask ourselves what assumptions underlie
this value judgment, and what costs a tendency to label women as either
victims or vamps might have on the general ability of women citizens to
project an image of self-confidence and a readiness to protect themselves in
daily life.

One could argue about whether the more viable and socially
desirable way to redress this power imbalance is by de-stigmatizing the use
of violence by women, or by more seriously and effectively condemning the
use of violence by men. Either way, the sex-based discrepancy in the ability
legitimately to threaten and use force has broader societal implications that
should be more systematically examined and addressed.

In the final analysis, the best way to remedy the problem of
violence is to eliminate its structural predicates.20 6 A variety of factors
contribute to the legitimacy and frequency of the use of violence by, and
against, women. The crucial task is to remember the multifaceted quality of
human interactions and confrontations, and to refrain as much as possible
from forcing any particular individual or situation into a pre-conceived
model. This requires resisting the temptation to classify women who use
violence either as victims or as vamps and the tendency to distribute the
social good of judicial clemency (in the form of acquittals or reduced
sentences) on the basis of these popular stereotypes. Part of viewing women
as fully human is viewing them as capable of "normal" uses of violence,
some of which may be desirable (such as the use of violence for self-
protection), and others which may be destructive (including violence
against property and people motivated by rage or frustration, rather than by
deception and premeditation). Whatever the outcome, judicial
determinations of whether given acts of violence by women are permissible
or criminal should be made with a sensitivity to pre-existing power
imbalances that may exist between men and women, as well as to the failure
of state institutions to redress these imbalances in satisfactory ways.
Lawyers and judges should be encouraged to realize that empowering
women to use physical aggression as a survival tool in certain situations
where they do not enjoy or cannot access the protection of the state does not
require portraying women as helpless victims, and that condemning the
unjustified or excessive use of violence by women need not entail branding
women who resort to violence as viragos or vamps.

20S Anne Herrmann, Fatal Women: Lesbian Sexuality and the Mark of Aggression

37 Criticism 641 (1995), available at 1995 WL 15015098 (reviewing Lynda Hart, Fatal
Women (1994) and Karen McPherson, Incriminations (1994)).

206 See Comack, supra note 167, at 82: "Gender-based violence is a structural

issue; it reflects and reinforces women's inequality in society. To this extent, abuse is one
manifestation of the existing power imbalanaces. While abusive relationships take different
forms and occur in different contexts, they ultimately boil down to issues of power and
control." State responsiveness to violence against women is thus crucial, both practically and
symbolically; see also Kahler, supra note 74, at FI.

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V. CONCLUSION

It has been said that "[b]ehind each offence is a set of events from
which Law [sic] makes its scripted account. '20 7 In creating the "scripted
account" of the use of violence by women, "Law," which can appear in the
official form of judges, jurors, prosecutors, and public defenders, and the
unofficial form of the media and public opinion, tends to rely upon the
identification of women defendants as either victims or vamps. This may be
a natural and even largely inevitable result of human psychology's desire to
fit new experiences into pre-existing categories and frameworks and of a
strategic litigation incentive to paint extreme pictures to persuade a judge or
jury through an appeal to emotions. However, the effect of this tendency in
trials involving violence by women is to reinforce societal images of
women as either helpless or deviant.

There is no doubt that violent men are also demonized to a certain
extent, particularly when they face execution. 208 However, the above
exploration of the portrayals of the four women on Florida's death row
suggests that women are demonized in a particular fashion in order for
society to justify killing them, namely, by contrasting their transgressions
with a culturally ingrained ideal of femininity that underpins a social order
based on sex-specific roles and hierarchies. The tremendous discrepancy in
the number of women and men on death row reinforces the idea that women
who are sentenced to death are exceptionally deviant, and even monstrous.
Conversely, in order for a prosecutor to succeed in convincing a judge or
jury to execute a woman-the ultimate form of condemnation and
retribution-he or she must portray the woman as particularly harmful to
society, both concretely through potential recidivism, and symbolically for
having transgressed sex-role stereotypes and criminal prohibitions against
violence. The narrative strategies explored in Part I illustrate certain
common themes deployed in demonizing women, suggesting that there is a
limited vocabulary for discussing women's evilness. Sex-role stereotypes
have figured prominently in the public perception and portrayal of the four
women in Florida, and arguably of violent women more generally.

As noted above, while the impulse to rely on familiar categories
and embedded assumptions may be understandable, it should be identified
and resisted to the greatest possible extent. The reinforcement of sexist
attitudes through judicial institutions exacerbates their hold on the popular
psyche, obstructing the possibility for social attitudes and interactions to
approach a more egalitarian model. For women accused of having

207 Comack, supra note 167, at 27.

208 As Justice Brennan wrote, "It]he calculated killing of a human being by the
State involves, by its very nature, a denial of the executed person's humanity." Furman v.
Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., concurring).

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committed violent crimes, the available options seem deeply unsatisfactory:
either take on the mantle of victim and renounce the capacity for moral
agency, or accept criminal culpability and face societal condemnation. If
any human beings deserve the death penalty, this group doubtless includes
both women and men. In each case, there should be a contextual evaluation
of the circumstances of the particular attack or confrontation, and a
concerted effort to be aware of, and to curb, the strong influence of
pernicious and potentially distorting sex-role stereotypes. In the case of
women defendants, this heightened awareness must also include an
acknowledgement of society's complicity in limiting the choices that
women have, for example, through state unresponsiveness to violence
against women. Normalizing female aggression may compound the
problem by increasing the general social acceptability of the use of violence
(although perhaps there would be fewer attacks if there were greater fear of
violent responses), but it would likely also foster greater equality in both
public and private interactions between men and women. Navigating these
tensions and accommodating these diverse imperatives constitutes a central
challenge-and a central responsibility-for formal and informal actors in
the criminal justice system.

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