Activity: Fact Pattern

Activity: Fact Pattern

Note: Also included is a brief summary of what each group discussed.

NEUTRAL (Consider this case based on how we currently study law - think: reasonable person, etc.): A hires a hitman to kill B, who has been abusing A for years. A has reported B's abuse to the authorities on a few occasions, but nothing was ever done. B was not killed, but A's intentions were discovered and A is being charged for counseling to commit murder.

Discussion: The group who discussed this thought that the decision would have to do with the type of abuse and how long the abuse had gone on for. When presented with the question whether it would make a difference if A was a woman or a man, there was hesitation in the response – they wanted to say no, but felt that realistically, there would be a different result.

FEMINIST THEORY (Consider this case based on how we currently study law versus how a feminist would approach the problem): A hires a hitman to kill B, her husband, who has been abusing A and their child for years. A has reported this abuse to the authorities on a few occasions, but nothing was ever done. Her husband was not killed, but A's intentions were discovered and she is being charged for counseling to commit murder.

Discussion: It was generally felt that A should not be charged with murder due for many of the reasons identified by MacKinnon in her article, especially relating to the fact that women were not part of the development of criminal law. However, it was felt that A should have had another option aside from hiring a hitman. Additionally, the lack of response from the police was criticized.

CRITICAL RACE THEORY (Consider this case based on how we currently study law versus how a critical race theorist would approach the problem): A is an African-Canadian woman living in a poor neighbourhood in Halifax. She hires a hitman to kill B, her husband, who has been abusing A and their child for years. A has reported this abuse to the authorities, who have ignored her and told her to stop bothering her for such minor domestic disputes. B was not killed, but A's intentions were discovered and she is being charged for counseling to commit murder.

Discussion: The discussion focused largely on the role of place in this fact pattern. The history of Africville was brought up and linked to the response of the authorities. Based on the historical and societal context, it was determined that A should not be convicted.

HUMAN RIGHTS LAW/CRITICAL RACE THEORY (Consider this case based on how we currently study law versus how a critical race theorist/human rights lawyer would approach the problem): A is a recent immigrant who has been sponsored by her husband, B, in an effort to eventually become a permanent resident of Canada. She hires a hitman to kill B, who has been abusing A since she arrived in Canada one year ago. While in her hometown she knows that this abuse is accepted and that nothing would be done if she reported it in her country, she knows Canada must be different. Unfortunately, when A reported this abuse to the local authorities, they warned her that her husband is her only chance of staying in Canada, so she should stop complaining and be happy that she's in Canada. B was not killed, but A's intentions were discovered and she is being charged for counseling to commit murder.

Discussion: The fact that A is not a permanent resident was brought up as a major issue. The group questioned what would happen to A if convicted, and worried that someone with her status had little means to fight off the charge. A’s complete reliance on B was another concern.

QUEER THEORY (Consider this case based on how we currently study law versus how a queer theorist would approach the problem): A is a gay man living with his abusive partner B. A hires a hitman to kill B, who has been abusing A for years. A has reported B's abuse to the authorities, who have ignored him and suggested he simply fight back - after all he's a man, and his boyfriend can't be hurting him that bad. B was not killed, but A's intentions were discovered and A is being charged for counseling to commit murder.

Discussion: The group felt that A would likely be charged at the end of the day. There was a debate as to whether spousal abuse in a homosexual relationship should be treated differently than spousal abuse in a heterosexual relationship. The group also felt that the authorities needed better training on this issue.

LAW & CULTURE (Consider this case based on how we currently study law. How does the fact that A is a respected judge change anything?): A is a respected Court of Appeal judge. Unbeknownst to the public, she has been abused for years by her husband, B. She has reported this abuse to the authorities, but nothing was ever done. A hires a hitman to kill B, but before B is killed, A’s intentions are discovered and she is charged for counseling to commit murder.

Discussion: This group felt that a court might think A should have known better, and that she should have tried harder to max-out her options before going to such an extreme. They held the judge up to a higher standard because of her knowledge of the law and therefore her understanding of the consequences of her actions.

WRAP-UP: The goal of this exercise was to see if/ how using different legal theories and applying them to the law as if this was the current way we understood law would affect the outcome of a case. We used criminal law as a background (the Ryan case), since none of us have taken a criminal law course and we wanted to avoid dealing with and legal procedures that could affect the outcome of the case. Everyone essentially had the same case – only the background of the defendant was slightly altered. At the end of the entire presentation, we asked about whether these theories lead to the conclusion that law could/ should be applied differently for different types of people. Are we creating too many “exceptions to the rule” each time we integrate a critical theory into the study of law?