[It] accords individuals the status of autonomous moral agents who, because they have axiomatic freedom of choice, can fairly be held accountable and punishable for the rational choices ⌠they make. ⌠[I]nformed voluntary choices of action are both necessary and sufficient to justify blame and punishment.
The core argument is that the force of the criminal law should only be imposed on those who can be said to be responsible for their actions, a task which is determined with reference to objective standards. In the criminal law context, an objective standard refers to a standard that is relatively fixed and independent of the agent, in contrast with a standard that varies with the perceptions, qualities, and capacities of the accused (Moran, 2003). For instance, as Justice Wilsonâs famous statement from Hill describes it:
The objective standard ⌠may be said to exist in order to ensure that ⌠there is no fluctuating standard of self-control against which accused are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard.
(R v Hill, 1986)
The objective standard, by creating a fixed normative benchmark independent from the actual normative capacities of individuals, supposedly ensures equality under the law by precluding individuals from invoking their own divergent values. Indeed, this is central to the rule of law and to its conception of equality (Moran, 2003). The actions of individuals are therefore weighed against an idealised âreasonableâ person as an objective legal standard. For well over a century, the reasonable person has been a central figure in the landscape of the law, and for assessing responsibility in criminal contexts. However, in reality, attributions of blame and responsibility under this standard have been troublingly uneven. For example, feminist legal scholar Nicola Lacey suggests that these objective standards based in individual capacity, agency, rationality, and reasonableness were regimes of truth in which women were incompletely accommodated. Indeed, one of the most pervasive features of criminal responsibility is the gendered nature of attributions of responsibility and criminalisation (see Heidensohn, 1968, 1985; Naffine, 1989; Smart, 1979, 1995). Assumptions about rationality, capacity, and agency or their absence are strongly overlaid with gender norms and assumptions. While the paradigmatic liberal legal subject is a socially decontextualised individual who is âtheoretically genderlessâ (Grear, 2011, p. 44), feminist scholars have compellingly demonstrated the inherent masculinity of this subject. Symbolically speaking, western philosophy has systematically drawn on a binary construction in which the characteristics of liberal personhood â rationality, autonomy, agency, capacity â are associated with masculinity (see for example, Naffine, 2002). The feminine has therefore constituted the binary opposite, existing in a symbiotic hierarchy of the devalued feminine, and the opposite of rational, autonomous, and capable (Naffine, 2002, pp. 81, 87). Women, as manâs âOtherâ, were conversely perceived to lack agency, being controlled by their bodies, passions, and emotions (Olsen, 1990). The âreasonable manâ of law has been identified by feminist scholars as modelled on a âwhite educated affluent maleâ (Naffine, 1990, pp. 100â101). For well over a century, this gendered understanding of reasonableness was openly announced in the lawâs conception of the âreasonable manâ. An example is AP Herbertâs 1935 infamous opening in the judgment in Fardell v Potts, a fictional case where the court is faced with the puzzle of applying the reasonable man standard to a woman. After noting that among the many authorities there is âno single mention of a reasonable womanâ, he concludes âlegally at least there is no reasonable womanâ (Moran, 2003).
The rise of legal conceptions of individual responsibility founded in agency, rationality, and capacity therefore coincided with an increasingly medicalised view of female irresponsibility. Women were understood as less rational, feebler minded, less autonomous, less fully citizen than men, which had implications for constructions of womenâs deviance and criminal responsibility (Lacey, 2008). As Lacey (2008) has observed in her historical analysis of womenâs criminal responsibility, in social circumstances in which womenâs agentic capacities were called into doubt, criminal law struggled to place women as âreasonable personsâ (see also Allen, 1998). Attributions of responsibility to women therefore tended to oscillate between an assumption of non-responsibility reflected in pathologisation discourses, or an extra-punitive âdouble devianceâ stemming from a breach of the criminal law and a breach of femininity. However, each of these responsibility forms were marked by womenâs âparticularity and specificityâ rather than the generality and universalism often legally ascribed to menâs criminal responsibility. As such, womenâs criminal responsibility was always constructed as âatypicalâ (see Loughnan, 2018). On the other hand, the classical liberal male subject, as the universal rational subject, can be imbued with rationality even when he engages in violent conduct.
Conceptions of responsibility based in liberal ideas of agency, rationality, and reasonableness have also worked against women as victims, often responsibilising them for their own abuse. For example, using domestic abuse as an illustration, Naffine (199...
