Concurring Opinion in Felony-Murder Conviction Highlights Femicide in U.S.

The Massachusetts Supreme Court published Commonwealth v. Paige in December 2021. The case involved the 1987 killing of Dora Brimage for which the defendant had been indicted in 2016. The defendant and his brother drove Dora home from a party. She was found murdered the next day at a construction site where defendant's brother worked. She died of blunt force injuries to her head and strangulation. The case remained unsolved until 2013 when federal funding supporting the use of DNA testing to solve "cold cases" was used to test sperm located on the victim. The defendant was subsequently charged with felony-murder in the first degree with a predicate offense of aggravated rape. The Supreme Court upheld the conviction after considering several issues on appeal. The case is quite remarkable for the concurring opinion written by Justice Elspeth B. Cypher contextualizing the case as femicide within a larger epidemic of violence again women. The opinion is heavily excerpted below with citations and footnotes largely omitted: 

I write separately to more firmly reject our reasoning in Commonwealth v. Scesny, 472 Mass. 185, 34 N.E.3d 17 (2015), and to address the continuing epidemic of violence against women, including femicide. We have not used the term “femicide” in our case law, but I think it should be recognized as a distinct phenomenon.

Femicide is the intentional killing of a woman because she is a woman. Because the victims of femicide are targeted based on their sex, femicide may be understood as a type of hate crime. The violence of these offenses serves to terrorize the victims and, thus, to subjugate women as a group. As such, hate crimes exact a greater toll on society and women, both individually and as a group, than isolated incidents of violence. 

Femicide also exists on a continuum of sexual violence, including sex trafficking, rape, aggravated rape, and sexual harassment. When any one of these forms of sexual violence results in death, a femicide has been committed. Femicide is thus “the most extreme form of sexist terrorism, motivated by hatred, contempt, pleasure, or a sense of ownership of women.” J. Caputi & D.E.H. Russell, Femicide: Sexist Terrorism against Women, in Femicide: The Politics of Women Killing 13, 15 (J. Radford & D.E.H. Russell eds., 1992). Where, as here, the jury apparently found that the victim’s murder stemmed from the same criminal episode as her aggravated rape, I believe it is appropriate to refer to her killing as a femicide.

[Omitted discussion of the legal treatment of women historically as context for femicide, including the legality of marital rape and doctrines like the "heat of passion," which implies that the victim, by committing adultery, is partly to blame for the defendant’s violence, and that the defendant was excused in the killing."]  

To use the term “femicide” also acknowledges its prevalence in our society at large. Reliable data on the incidence of femicide is unfortunately lacking. No official sources directly study male-on-female homicide or its motivations. An analysis of cross-sex homicide rates generally, however, suggests that femicide is on the rise in the United States. See Violence Policy Center, When Men Murder Women: An Analysis of 2019 Homicide Data 2 (Sept. 2021) (“Since reaching its low ... in 2014, the rate [of women murdered by men in incidents with one victim and one offender] has increased, with 2019’s rate ... up nine percent since 2014”).

The Federal Bureau of Investigation (FBI) Uniform Crime Reporting (UCR) Program provides the primary source of data on such homicides. * * *  The UCR shows that in the year 2019, there were 1,647 known killings of women committed by men, compared to 477 killings of men by women. The year before, there were 1,731 killings of women committed by men. While these statistics paint a blurry portrait of femicide in the United States, they demonstrate that its occurrence is significant.

The paucity of statistics is partly to blame for femicide’s lack of recognition. More importantly, femicide also is ignored because of its finality. As Jill Radford appropriately notes, “When a woman is killed, there may be no survivor to tell her story.” Radford, Introduction, Femicide: The Politics of Women Killing at 4. While there may be valid reasons for society’s reluctance to relive the violent murders of women, the failure to do so risks femicide being forgotten or denied.

It is in the context of this finality that I wish to make clear that I reject the reasoning in Commonwealth v. Scesny, 472 Mass. at 193-194, 34 N.E.3d 17. In both Scesny and the present case, the evidence tended to establish that in each case, the sexual encounter with and the killing of the victim were contemporaneous. While it is certainly true that a killing may follow a consensual sexual encounter, that does not appear to have occurred in either case; each woman was apparently murdered so immediately after her rape that neither woman even had the chance to stand up after the assault. Id. at 189-190, 34 N.E.3d 17. Nonetheless, in Scesny, we concluded that there was insufficient evidence of rape because its traditional indicia, such as torn clothing or injured genitalia, were absent. Id. at 193, 34 N.E.3d 17.

This reasoning obscures the context in which the rape occurred: femicide. When a killing takes place following a rape, the victim no longer can testify about the absence of consent in the sexual encounter. She effectively has been silenced. In cases such as these, the jury must be permitted to infer from the evidence of a killing that the sexual encounter was nonconsensual. This is not a “piling [of] ‘inference upon inference’ ” or “conjecture and speculation.” * * * These are reasonable inferences that the jury are entitled to draw. 

Additionally, such inferences wholly are in line with our previous holdings that consent is not a defense to serious injuries allegedly inflicted during sexual encounters. Analogously, consent is not present where the jury find that the sexual encounter took place at the same time as a violent killing.

I also wish to address directly the implication that prostituted women are more likely to consent to a sexual encounter before being killed. A prostituted woman is no more likely to do so than a nonprostituted woman. Even outside the context of homicide, evidence that a woman is prostituted does not decrease the likelihood that she was raped. Rather, studies suggest that prostituted women are more likely to be raped than others. * * * Additionally, evidence suggests that homicides occur with similar frequency alongside prostitution as they do alongside rape.  

Regardless whether the victims in Scesny and the present case were prostituted, I agree with the court that the jury should be permitted to infer that a sexual encounter was nonconsensual where it occurred contemporaneous with a killing. Permitting the jury to make such a finding acknowledges that femicide and rape both exist on a continuum of sexual violence.