The Crimes of Womanhood: Defining Femininity in a Court of Law

Introduction: Womanhood on Trial

Introduction Womanhood on Trial This is a book about stories. More precisely, it is about stories told by white male lawyers to white male juries concerning women of all kinds. One might even consider them “morality tales” recast for their contemporary, and presumably more sophisticated, audiences. In these stories, virtuous women are betrayed by libertines, and innocent men are seduced by fallen women. Insane women threaten the safety of the community and sane women are exploited by greedy physicians. The odd fact that sometimes all these things occur simultaneously to the same characters is mainly due to conflicting goals of the narrators. Lawyers tell stories to win verdicts. Thus, lawyers often find themselves working to construct stories that will make the same characters and plots arrive at very different conclusions. By now it should be no shock to the student of law that it is possible to define the task of persuading juries as a form of storytelling. Landmark works by luminaries such as James Boyd White have established that the law itself relies on narratives. And it is not merely scholars who have made that leap. Practicing, and practical, lawyers such as Gerry Spence have made the art of storytelling a central part of seminars meant to improve the skills of trial lawyers. What is less evident in the scholarship is the recognition that, since a story is a rhetorical construction, the stories of law are subject to the same rhetorical rules and strategies as those told everywhere else. In their coherence, in their believability, and in their mutability, the narratives of law are not that different from all the other stories in our culture—from classical novels to comic books. 2 Introduction The stories told in courts of law, of course, are qualitatively different from those of literature. At the very least, they possess more concrete effects upon human behavior. Jurors base verdicts on these stories. Judges write decisions that enter into the narratives of precedent and set the boundaries for future arguments. The press copies them for distribution of moral precepts to the masses. Eventually, elements of the story integrate themselves into the “law” so thoroughly that they become “facts.” Facts are hard to dispute and harder to escape. Some of this process is conscious. As Wetlaufer notes, any lawyers worth their salt “will make every effort to disguise the fact” that a story is a “creation, and to present it instead as a simple revelation of the objective truth” (1559). Simultaneously, they may construct that story from “objective truths” that were actually derived from other stories once told with similar effort. In this case, no one is consciously aware of the transformation taking place. It is at this invisible nexus of “truth” and “fiction” that the discipline of rhetoric is at its best. Rhetoric is intimately concerned with the means by which communicators transform their beliefs into believable narratives that will sway audiences. It also provides the tools through which a commonly accepted narrative can be used to create new stories—even stories that will contradict the original. Rhetoric thus aids us in the examination of narratives as tools for both creating the status quo and dismantling social orders. The field of rhetoric itself has gone through multiple iterations of theories and methods from which to evaluate this endless process. Walter R. Fisher moved to both narrow and broaden the scope of narrative theory. Fisher claimed that narrative was more than just a story; it was, in fact, a perspective one could take toward all claims to “truth.” Every attempt to order reality into some instructive whole involves narrative. At the same time that he expanded narrative into every realm of human reasoning, he also narrowed its scope. For Fisher, the best use of narrative analysis was in the arena of public moral argument. The most enduring “facts” created by stories, he claimed, were those moral touchstones that could later serve as the bases for evaluating morals, ethics, and social conventions. These touchstones exist independently of reasoning processes such as the highly formalized rules of law, although they may be used as warrants in that process by trained arguers. The increased interest in narratives as conveyances of moral values has been heralded as a victory for disenfranchised social entities who have no formal training in, nor access to forums for, the traditional models of argument found in the law. Traditional models of reasoning based upon the classic Aristotelian method require extensive training, which usually is only...