The face of criminal law

So that I can let this sink in, I will blog about how the sovereign decides what the face of criminal law will look like by defining the shape of it's features. This decision is not static, rather it is always in flux. This reflects the need the balance the need of society (the many) with the rights/freedoms of individuals and the beliefs about what is fair held by the people that make up society.

For example, one feature of criminal law is "given an adequate provocation, what sort of response is justified?" The standard of law seems to be that one may response as a reasonable person would. "Reasonable person" tends to become a very subjective standard, but which subjective factors are allowable and how many different definitions of "reasonable person" does that create?

In a large and diverse society, it may become difficult and possibly unfair to allow only one definition of a "reasonable person" or to give no instruction as to what subjective factors are allowable. One the other hand, to permit too many subjective factors may become arbitrary and is possibly divisive to society. The model penal code gives purposely vague language here and the commentary makes it clear that the authors leave it up to the jurisdiction to decide which factors are allowable and for what situations. Jurisdictions take this up through statutes, judicial precedents, jury instructions, and all the other means that society has for determining the shape of certain features of the law.

Would an adequate jury instruction be: "Was the defendant's response to being assaulted reasonable?"
How about: "Was the defendant's response to being assaulted reasonable given her age?"
How about: "Was the defendant's response to being assaulted reasonable given her age and her status as a battered woman?"
How about: "Was the defendant's response to being assaulted reasonable given her age and her status as a battered gay woman?"
How about: "Was the defendant's response to being assaulted reasonable given her age and her status as a battered gay woman from Yonkers?"
How about: "Was the defendant's response to being assaulted reasonable given her age and her status as a battered gay female Unitarian from Yonkers?"
How about: "Was the defendant's response to being assaulted reasonable given her age and her status as a battered gay female Unitarian haberdasher from Yonkers?"
How about: "Was the defendant's response to being assaulted reasonable given her age and her status as a battered gay female Unitarian haberdasher with a lisp from Yonkers?"
How about: "Was the defendant's response to being assaulted reasonable given her age and her status as a battered gay female Unitarian haberdasher with a lisp living in Yonkers public housing?"

"It doesn't matter what I think, ask me a legal question!"

Jursidictions will come to different conclusions and my sentiment (or yours) about what's in and what's out can be expect to run the gamut from "this this awesome" to "this is the opposite of awesome" but is irrelevant.

What's important to understand is:
the reasoning for the standard that is set,
what benefits the jurisdiction hopes to gain,
to what extent are those benefits attained or not,
and at what price.






(I didn't come up with any of these ideas but what I wrote is my own digestion of the course materials. I probably should put some citations and after I take LARC I promise that I will put them in.)