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The Crimes of Womanhood
Defining Femininity in a Court of Law
By A. CHEREE CARLSON
University of Illinois Press
Copyright © 2009 Board of Trustees of the University of Illinois
All right reserved.
ISBN: 978-0-252-03401-5
Chapter One
Narrative Intersections in Popular Trials
In the introduction, I argued that the ideal way to explore the power of literary icons of womanhood is to investigate cases where definite decisions were made, in arenas where the reasoning process is still relatively available to the researcher. Trials are especially good starting points for such an investigation.
In addition to the obvious benefit of having individuals "vote," trials are also mirrors of attitudes in the public realm. Trials serve as "a form of social knowledge in that it is the means by which we hold what we know. It is a symbolic container allowing symbolic material to be collected and affirmed as social goods—that is, as substantive knowledge" (Hariman 21). This "substantive knowledge" is reified well beyond the confines of the courtroom. Published accounts of trials were popular newspaper fare and often inspired debate in other arenas.
All trials do not enter the public imagination on an equal footing. Unless there is local interest, the vast majority of cases proceed unnoticed by press or public. Yet sometimes a case becomes so compelling that it is reported, discussed, and dissected on a larger stage. The names of the principals became familiar to a national audience. Indeed, since the advent of television, even the lawyers often become celebrities. When a trial achieves such status, it becomes known as a "popular" trial. Hariman provides a basic definition: "a popular trial is a judicial proceeding that gains the attention of a general audience, usually through sustained coverage by the mass media" (2).
Those trials that achieve popular status are important on multiple levels. First, the very fact that a trial can hold the attention of a broad audience indicates that it in some way mirrors "the interests, values, and controversies of society" (Schuetz 2). Thus, we can discover in them which legal issues are of genuine concern to citizens outside the courtroom.
Second, trials are indicators of public attitudes about the moral and cultural implications of those issues. In a clash of social values, trials tell us, through verdicts, which values are as compelling as we in the audience believe them to be. They tell us which forms of knowledge are easily manipulated by discourse and which are contradicted by law.
Finally, popular trials provide additional salience to the outcome of jury deliberations. Although verdicts in all trials are obviously important to the principals, often they are not the subject of public debate and discussion outside of the legal field. The exception is the popular trial. In many cases, a trial might be argued and reargued by the public and the press. The resulting body of new texts offers additional insights on the attitudes of laypeople—occasionally even those who do not participate in the narratives of white masculinity.
Rhetorical Analysis and Trial Narratives
While it is obvious that the media coverage of a particular case is thoroughly grounded in popular culture, it might not be so clear that the discourse produced within a case is also so grounded. Indeed, narratives produced outside the courtroom are often viewed as "contaminating" the process of rational decision making, as witnessed by both lawyers' attempts to discover the potential jurors who have read the least about a case in the newspapers.
The fact, however, that neither lawyers, judges, nor juries enter the courtroom tabula rasa guarantees that material derived from years of exposure to preexisting narratives can, and probably will, be used in creating persuasive appeals. The discipline of rhetoric is perfectly suited for an investigation of how those appeals are constructed and delivered to the target audience.
The rhetorical approach to the study of legal discourse takes as a given that the law is not a static entity but is rather the outcome of the dynamics of discourse. This perspective acknowledges the role of logic and precedents in framing discourse while simultaneously exploring the manner in which those frames are manipulated and altered by skillful rhetoric. The utility of this approach has been proven repeatedly in research on the law and popular trials. Naturally, rhetorical analyses can, and have, been pursued through a variety of specific methods aimed at highlighting elements of discourse appropriate to the goal of the researcher. For example, Schuetz, in The Logic of Women on Trial, used a variety of methods focused on the forms of "logic" used to affect decision making in cases about women, and Jamieson concentrated on the effects new forms of media had on the outcome of the Scopes trial (Eloquence 31–42).
Since my purpose is to explicate the manner in which images of womanhood were manipulated, with varying degrees of skill, by male rhetors, I will use methods that highlight the manner in which symbolic constructions born in one rhetorical arena could be transformed and inserted into another. Thus, I will use a narrative approach to discourse that is informed by the theory of discourse created by Kenneth Burke.
Narratives and Decision Making
Rather than analyzing the "reasons" given in the cases, I will review the arguments as though they were narratives produced by storytellers. There is well-established precedent in rhetorical scholarship for this approach, which at times can be more revealing than parsing arguments. It has been argued that "narrative is a major (perhaps the major) form of cultural communication of common-sense notions. It is the mode in which many of our value-judgments are stored and transmitted—rather than being conceptualized or communicated in analytical discourse" (Jackson 61). Narratives are central to criminal trials, which are "organized around storytelling" (Bennett and Feldman 3). Such stories upon which verdicts are based often have little to do with what really happened in a dispute but instead create a reality that the audience may or may not accept.
Obviously, receivers must use some standards to evaluate stories or they could never choose between competing versions of events. The nature of these standards has not been clearly established, as they seem to vary in ways not clearly derived from the legal process. While one jury might adhere to strict legal standards of evidence, another might apparently ignore those standards to judge based on personal prejudice. There have been several attempts to discover some basic universal mechanisms. For example, Fisher's prototypical model of narrative rationality bifurcates the evaluation process. He claims that audiences judge the internal coherence of story elements, such as plot, character, and timing, then proceed to evaluate "narrative fidelity," or whether the story "rings true" with other stories with which they are familiar (Human Communication).
At this level, preexisting cultural narratives become important to the process. I believe that the process operates more reciprocally than the categories set by Fisher may indicate; story elements that do not align with preconceived notions are more likely to be dismissed as incoherent than evaluated for plot function. Thus, narratives and their applications are at the heart of the process that Fisher terms "narrative rationality" (47).
A primary narrative element in a case determining criminality is character. A rhetor faced with a woman whose behavior is out of the ordinary might attempt to create a coherent persona for her by casting her in a role as though her life were a narrative to be evaluated. Character is central to this process. Though they begin as the building blocks of stories, characterizations can take on lives of their own, moving between and among other narratives until they become "culturally accepted accurate descriptions of a class" and can be labeled "character-types" (Condit, "Democracy and Civil Rights" 4). Character types function as universals against which we can compare new characterization.
Using universalized characters to evaluate a narrative becomes delicate when the universals are embedded in cultural narratives that have come to define who we are as a society. When drawing a line to include or exclude a character from lawful society, the rhetor must be certain that this line does not threaten the character of the audience. As Fisher notes, if "a story denies a person's self-conception, it does not matter what it says about the world.... the only way to bridge the gap ... is by telling stories that do not negate the self conceptions that people hold of themselves" (Human Communication 75).
This fine line between a person's concept of self and other must be manipulated carefully. There is usually enough ambiguity in a particular concept that it can be symbolically manipulated to create strategic points of identification between who we think we are and who the rhetor would like us to believe we are, in order to alter our judgment of the actions of a particular character. These points of ambiguity are a specific focus of Burke's theory of the function of symbolic constructions in rhetorical influence.
Burkean Concepts and Narratives
Kenneth Burke is one of the most influential rhetorical theorists of the twentieth century. An important focus of his system is the ontological claim that human beings are human precisely because they create, and are created by, complex symbolic structures that alter their perception of the world (Language 15). In the broadest terms, Burke's logic proceeds as follows: Human beings create symbols to order reality, but those symbols rarely have any concrete connection to that reality. Since there is no necessary link between symbol and referent, we can use a wide range of symbols to refer to the same referent. Thus, our choice of the precise symbol to use to describe an object can serve as a marker for our attitude toward that object. Burke then makes the claim that our attitude toward something will affect our actions in reference to it. For example, choosing to name defendants in a bombing case either anarchists or freedom fighters will have a material effect upon our judgment of the behavior.
This line of reasoning leads naturally to the proposition that we can find out how a culture views a woman by examining the symbolic structures that attach themselves to her. Such examination also provides important clues to how these symbols might be altered during a trial to redefine her character along the lines preferred by an attorney.
Symbolic structures are usually composed of multiple elements that are not mutually exclusive; a woman might be either working class or middle class, simultaneously parent and child, or excellent at only one of several gender-defined roles. The grey areas between categories are of special interest to Burke. As he notes, when categories blur "so that you cannot know for certain just where one ends and the other begins, you have the characteristic invitation to rhetoric" (Rhetoric 25).
Overlapping categories create potential ambiguity. Skilled rhetors know how to capitalize on ambiguity. Rhetoric can thus become a form of alchemy wherein a communicator can transform an element of character from a narrative in one context into an appropriate element from which to draw a conclusion in another. The process requires finding some area of "common ground": "participation in a common ground makes for transformability. At every point where the field covered by any one of these terms overlaps upon the field covered by any other, there is an alchemic opportunity, whereby we can put one philosophy or doctrine of motivation into the alembic, make the appropriate passes, and take out another" (Burke, Grammar xix). There are a number of tools available for "making the appropriate passes." Although they differ in practice, they are similar in goal. One finds discussions of a symbolic element within narratives already assimilated into the culture and finds a common ground from which to transform it into an element fitting a new narrative.
Burke's dramatistic theory contains a number of rich heuristic concepts that can be used to unearth the many ways storytellers can achieve these transformations. For the most part, I will discuss the appropriate concept in the chapter where it is applied to its most noticeable effect. There are, however, two narrative tools that were used frequently in a number of contexts: bridging devices and frames. These bear introduction here, for they will appear repeatedly in the analyses.
A common tactic in narrative manipulation is using "bridging devices," or "symbolic structures whereby one 'transcends' a conflict in one way or another" (Burke, Permanence 224). A bridging device is a symbol that shares substantive elements of more than one social category, creating those "areas of ambiguity" from which one can transform meaning.
A second means of manipulating narratives is "framing." On the broadest level, a frame is a "more or less organized system of meanings by which a thinking man gauges the historical situation and adopts a role with relation to it" (Burke, Attitudes 5). Burke's investigation of frames is particularly suited to this analysis because he delineates the myriad of responses to situations in terms of overarching literary forms, such as tragedy, comedy, satire, and burlesque. The same series of events, framed differently, can lead audiences to radically different evaluations of those events. This concept brings narrative and interpretation together in a productive manner.
In the cases that follow, rhetors of all sorts—lawyers, doctors, scientists, women's rights advocates, and ordinary citizens—will attempt to call upon characterizations of "woman" found in American culture and use them as premises from which to build narratives to attack or defend a particular defendant. Their relative success and failure in these endeavors will reveal which characterizations were "givens," which were subject to debate, and which did not seem to affect the audience at all. They will ultimately form a clear picture of what American audiences, particularly male audiences, thought about the "trials of womanhood."
Chapter Two
Framing Madness in the Sanity Trial of Elizabeth Parsons Ware Packard
Much madness is divinest sense
To a discerning eye;
Much sense the starkest madness.
'Tis the majority
In this, as all, prevails.
Assent, and you are sane;
Demur,—you're straightway dangerous,
And handled with a chain.
—Emily Dickinson
Emily Dickinson, a figure known almost as well for her eccentricity as for her poetry, has encapsulated in these lines a dilemma that plagued both law and medicine in the nineteenth century. At what point does nonconformity cross the line into madness? And when does it become necessary to attach that chain?
This chapter explores that shifting line by analyzing the case of a woman who was actually tried for insanity in Illinois during the latter half of the nineteenth century. Due to an unusual set of circumstances, Elizabeth Parsons Ware Packard, a woman who appeared destined for quiet disappearance, instead was allowed to fight for her freedom. A jury of twelve men was asked to decide whether she was mad despite the fact that hers was not a criminal case; laymen could overturn a medical psychiatrist's opinion as to a person's sanity. In the presentation of arguments attempting to sway the opinions of men as to the state of a woman's mind, we can discover what both physicians and laymen thought it took to make a woman mad. This case is an excellent test of the potential power of preexisting narratives about women in American culture. What icons of womanhood could and could not be violated safely? Which ones were taken as "scientific" criteria for determining insanity?
The Packard case reveals that traditional elements of womanhood can be found operating behind the choice of evidence used by physicians, lawyers, and laymen to judge her. These elements, however, do not always lead to conclusions that we expect from our vision of these virtues. In some cases, too firm a commitment to a traditional virtue was as damning as a violation. What is praiseworthy at one moment is objectionable in the next. Women got no clear-cut guidelines for behavior from traditional feminine norms. An eccentric woman walked a thin line between being considered sane and insane, a line that could shift under her feet.
The Law Seeks a Discerning Eye
Prior to the nineteenth century, the role of the physician in the court was limited, even in cases involving insanity. The law dealt primarily with the criminally insane, and physicians testified as to the mental competence of the subject well after a crime had been committed. Thus incarceration was, at least in principle, based on an overt break with established law. As the new century progressed, however, the standing of medical science within the community improved. The burgeoning science of psychiatry had successfully constructed a new view that insanity "was a disease, requiring segregation from society and long term medical care" (Himelhoch and Shaffer 343).
(Continues...)
Excerpted from The Crimes of Womanhood by A. CHEREE CARLSON Copyright © 2009 by Board of Trustees of the University of Illinois. Excerpted by permission of University of Illinois Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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