Indeed, it cannot be denied that using these labels to depict female killers, whether using them correctly or not, perpetuates and entrenches feminine gender stereotypes within both society and the law. The use of these labels may allow individual women, in particular circumstances, to win their battle but they do little to allow women to win the war against having to conform to appropriate feminine behaviour or asserting their individual agency.
6.1. Issues of Justice for Women Who Kill
Another issue that arises from the use of the above labels and denials of agency is that of justice. That is whether justice is actually being done, or indeed whether it can be seen to have been done [
56], when female killers are labelled in this way and have their agency denied. When women commit violent crimes more questions are asked of, and simultaneously more explanations are made for, the violent actions of these women. This is because women are processed by the criminal justice system ‘[i]n accordance with the crimes which they committed and the extent to which the commission of the act and its nature deviate from appropriate female behaviour’ ([
25], p. 306). This is particularly the case with women who kill. When these women are tried for their crimes there is ‘[a] tendency for [their] trials to be turned into trials of their character and the extent to which they accorded with appropriate femininity’ ([
57], p.16). This gendered dimension to the trial process reinforces gender stereotypes and denials of women’s agency, in turn creating a form of gendered criminal justice. This form of gendered justice does not just focus on the murder committed by the woman in question, but also the degree to which her behaviour and often her lifestyle have deviated from appropriate feminine gender behaviour.
This gendered justice was most recently evident in the sentencing of Magdelena Luczak and her partner for the murder of her son, Daniel Pelka. In her sentencing comments, although the judge acknowledged that both Magdelena and her partner breached their position of trust as parents to Daniel, she explicitly referenced Magdelena’s failings as a mother. She emphasised; ‘Your breach of trust Magdelena Luczak is wholly irreconcilable with the loving care that a mother should show towards her son’ and ‘[y]ou, Magdelena Luczak, were fully complicit in these acts of incomprehensible cruelty towards your own son …’ [
58]. Although both Magdelena and her partner were given the same prison sentence, the fact that particular focus was placed on Magdelena’s deviance as a mother demonstrates how the concept of justice for women who kill takes a gendered form. Magdelena was not just being sentenced for murder, but arguably also for breaching her primary social identity of a mother.
Justice also differs for women who kill depending on the label attached to them and the way in which their agency is denied. This is most prevalent in cases of women who kill their children. As Huckerby explains; ‘[n]ot all criminal mothers are subject to the same treatment by the criminal justice system … more punitive treatment is delivered to those women who do not meet the ideal norms of “motherhood”’ ([
59], p. 151). Filicidal women who successfully plead infanticide and have their actions pathologised are generally treated with a degree of leniency and sympathy. A mad mother has her agency denied as she is not considered to know or understand what she was doing when she killed her child. Therefore her ability to have made the semi-autonomous decision to act in the way that she did cannot be recognised because she was acting in a moment of madness. As a result, her actions ‘[a]re characterised as isolated and contained incidents that can be easily altered through medication and therapeutic treatment’ ([
59], p. 166). It is important to re-emphasise here that despite the Infanticide Act being specific as to the requirement of puerperal psychosis for a successful plea of infanticide, the ‘[c]oncept and scope of madness in infanticide cases is deliberately nebulous, so that judges, juries, and the media can selectively draw upon it to provide leniency for women whom they believe deserve sympathetic treatment’ ([
59], pp. 160–61).
In contrast, bad mothers are often treated much more punitively within the criminal justice system. The agency of bad mothers is denied through their placement within a realm of monstrosity which denies their humanity and thus their human agency. A bad mother is ‘“[d]epraved” … “ruthless, cold, callous, neglectful of [her] children or domestic responsibilities, violent …”’ ([
59], p. 158). Her actions cannot be pathologised and therefore the act of killing her child which is “[c]onsidered so antithetical to the behavioural norms of motherhood [is used] to justify the “demotion” of status from “mother” to the prematernal state of “woman”’ ([
59], p. 151) and finally to that of monster, thus denying her agency.
The selectiveness with which the justice system can draw upon the concept of madness in cases of women who kill their children means that if a filicidal woman’s case either cannot be constructed, or is not perceived in such a way that she has her agency denied through being labelled as a mad mother, it will be done through labelling her as a bad mother. It is clear then that the way in which filicidal women are labelled and how their agency is denied directly affects their treatment within the criminal justice system. Consequently, a woman who kills her child would arguably fare better being diagnosed with a recognised psychological disorder, and having her actions pathologised (even if she does not meet the threshold of puerperal psychosis) in the hope of being treated more leniently within the justice system. If she does not succeed in her quest to be labelled as a mad mother, the alternative label of a bad mother awaits, with the potential for a harsher punishment and an altogether different agency denial.
It is not just for women who kill their children that justice differs depending on how they are labelled and the way in which their agency is denied. The consequence of labelling and agency denial often results in either arguably very lenient, or extremely harsh punishment for any women who kill, with no clear middle ground existing between these two extremes. The recent case of Nicola Edgington is perhaps most illustrative of this point. Nicola Edgington killed her mother in 2005 and was consequently diagnosed with paranoid schizophrenia, with a prominent mood disorder. As a result she successfully pleaded guilty to her mother’s manslaughter by reason of diminished responsibility. She was detained indefinitely under the Mental Health Act 1983, a clear acknowledgment that Nicola was suffering from a mental disorder at the time she killed her mother. Despite her sentence of indefinite detention in a psychiatric facility, Nicola was released three years later as she was no longer considered a danger to the community. In October 2011, Nicola attacked Kerry Clark and killed Sally Hodkin and was subsequently found guilty of murder and attempted murder after the jury rejected her plea of diminished responsibility. On 4
th March 2013 Nicola was sentenced to a minimum of 37 years in prison [
60].
During her trial for murder and attempted murder in 2013, psychiatric evidence was presented declaring that Nicola was indeed suffering from an abnormality of mental functioning. However, the jury concluded that any such abnormality did not meet the requirements for diminished responsibility. Therefore the court concluded that her mental abnormality did not substantially impair her ability to form a rational judgment, or to exercise self-control. Sentencing Nicola, the judge acknowledged that she suffered from a ‘mental disability’, but accepted the jury’s findings that there was not a convincing case ‘[t]o conclude that the abnormality reduced [her] culpability to any significant extent’ [
60]. This seemingly drastically reduced any weight that the judge attached to the mitigating factor of Nicola suffering from a mental disorder. Moreover, in his sentencing report the judge recognised several aggravating factors, including ‘[p]remeditation, and a determination to overcome failure in order to achieve [her] ends’ and the fact that the attacks were ‘unprovoked and random’ [
60]. He also explained that he could not ‘ignore the fact that Nicola had killed before’ [
60]. In contrast to the case against Nicola in 2006, the judge in 2013 made it clear that Nicola was more culpable for her actions.
Comparing the two homicide cases brought against Nicola, several things become apparent. In the first case in 2006, Nicola was arguably labelled as a ‘mad woman’ by the court, as she was suffering from a mental abnormality which ultimately denied her culpability for killing her mother. Consequently the court felt that she needed treatment, rather than punishment. In contrast, in the 2013 case, Nicola was labelled as a ‘bad woman’ who was legally culpable for her murderous actions, and consequently needed punishment rather than treatment. This is despite her obvious on-going mental disorder, which in itself presumably required further treatment. What is clear then is that the responses in both cases are at the opposite ends of the spectrum. It seems then that the current law on murder and manslaughter, when being applied to cases of women who kill, sits best when working at extremes, rather than focusing on a more measured middle ground.
For Nicola, this had the consequence that her actions were pigeonholed in such a way that although her agency was denied in both instances, she was either labelled as ‘mad’ and arguably treated leniently, or as ‘bad’ and was treated punitively. The ‘bad’ label does not seem to be prepared to acknowledge or incorporate, to any significant degree, a defendant with some form of mental disorder. Similarly, the ‘mad’ label arguably fails to acknowledge any significant degree of culpability for the defendant’s actions and limits any punishment. Pigeonholing Nicola into being labelled and treated as either ‘mad’ or ‘bad’, when she arguably falls into both categories to some degree, arguably demonstrates the need for a clearer middle ground for female defendants in cases such as these. This middle ground could go some way to being filled with an approach by the criminal justice system which acknowledges the agency of women who kill.
Battered women who kill their abusive partners face specific justice based issues when they are labelled as victims. Although labelling them in this way denies their agency over their murderous actions, it simultaneously emphasises the responsibility these women have in becoming victims in the first place. Indeed, as noted by Lorraine Radford;
The topsy turvy justice of patriarchal law puts women on trial for their own victimisation. Thus … questions asked in courts of battered women who kill emphasise women’s own responsibility for prolonged victimisation. Why don’t battered women leave their abusers? Why are they abused so many times?
Therefore, it is argued that although these women do not have agency over their own actions, they are deemed to have some responsibility for the actions of their abusive partners. Focusing on battered women’s responsibility in this way refutes ‘[s]ociety’s complicity in the killing and the situation which helped precipitate it’ ([
8], p. 735), as well as diverting attention away from the criminal justice system’s responses to these women.
As well as being held responsible for their own victimisation, battered women who kill must also conform to prescribed forms of ‘victim appropriate’ behaviour in order to secure justice, as noted earlier in the article. As explained by Radford, this appropriate behaviour and the life-history scripts which are written for these women are done so by ‘[p]rofessionals and medical experts within and behind the scenes of the courtroom’ ([
15], p. 195). Women who are truly the victims of their abusive partners must arguably have their agency denied in their life script,
before it is denied through being labelled as mad or a victim. Therefore, the deserving, and arguably non-agentical victims include, ‘[t]he upper middle class man’s ideal bride … “good mothers”, “good wives”, “good housekeepers”, “good heterosexual servicers”…’ ([
15], p. 195). In contrast, women who may be perceived as asserting some agency within their life script by attempting to fight back against, or resist their partners’ abusive behaviour are not really battered. These ‘virago’ women have their agency ultimately denied when they are labelled within the criminal justice system.