The Reasonable Woman and the Zimmerman Jury

The jury that is hearing the case against George Zimmerman is all women. Some have suggested that women might be more sympathetic to the loss of a child, but there is another reason an all-female jury may be harder on Zimmerman. Jeannie Suk gave an excellent talk earlier this month at the AALS Mid-Year Conference on Criminal Justice in which she addressed expansions to the “castle doctrine,” the abandonment of the duty to retreat, and the role of masculinity in shaping these doctrines. Here is an excerpt from her 2006 article The True Woman: Scenes from the Law of Self-Defense that covers some of the same ideas (with footnotes removed):

The “true man” had a certain relationship and attitude toward his home and family. A “true man” did whatever was necessary to provide economically for his wife and children, who were dependent on him. He was the source of strong moral guidance for his vulnerable or needy wife or children. . . . To be a “true man” was to be a man who supported and protected a woman. He treated her sexual virtue with respect, even reverence. And similarly, a “true man” was protective of children. Mirroring the “particular and tender . . . regard to the immunity of a man’s house” found in the common law, “every true man” was supposed to evince a “tender and loving regard . . . for children, and [an] impulse to protect them from harm . . . .”

. . .

The “true man” rhetoric thus importantly valorized the man’s role as protector of his home and family. Reliance on the concept of the true man, then, enabled judges to leverage this appealing idea of a man defending his home and family into a more general authorization of self-defense in public places, even where the home and family were nowhere to be seen. The man defending his family against attack at home was the implicit model for the “true man” of self-defense law who in fact was permitted to defend himself without retreating from any place where he had a right to be.

Judicial opinions adopting the “true man” approach deployed a characteristically rights-focused language reminiscent of the view that an attack “without right” puts a person in a “state of war” and authorizes him to use deadly force. The new account of self-defense translated the idea of territorial boundary-crossing into a violation of a person’s rights.

Because self-defense doctrine depends so heavily on the objective reasonableness of the defendant’s actions, it matters who stands in the shoes of the hypothetical “reasonable person.” Here, the peers who will judge the (truth and) reasonableness of Zimmerman’s fear and his reaction are women. Most of the conversation about this case has centered on race (the jury includes no black women), but the law of self-defense is as gendered as it is raced. It is interesting that the jury does not include any of the people (men) whose cultural identity is at the root of much of modern self-defense law.

On a related note, the reaction to and coverage of Rachel Jeantal’s testimony speaks to another dimension of how gender is playing out in this case. For all of you criminal law professors who will use this case in your hypos or your lectures, take a look at some of the Black feminist analyses (you can start here and here). As always, these writers remind me of the ways race and gender are always present, but never simple, in criminal law.