Journal of the History of Sexuality 14.1/2 (2005) 161-185
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What's Law Got to Do with It?
Legal Records and Sexual Histories
Scholars researching social and cultural history have long been captivated by the possibilities of court records. Legal records seem to describe behavior not easily uncovered in other sources. As Edward Muir and Guido Ruggiero suggest, court proceedings produce texts that "generate little dramas about human conflicts and dilemmas, that resurrect the otherwise hidden life of the street, gaming hall, counterfeiter's workshop, priest's bedroom, and prison cell," that record the voices of the illiterate, of workers, and of women, and that allow the historian to "hear people talking about love, emotional and sexual intimacy, power, betrayal, and broken promises."1 Most beguiling of all, court records can take the researcher beyond the crime itself into the social and cultural worlds in which the act [End Page 161] took place. The pervasive use of the metaphor of legal sources as a window captures the allure of that possibility.2
At the same time, scholars have long been aware of how prone to distortion such a window can be. Legal institutions and officials, by allowing sexual behavior to be discussed only in terms of the law, by "limit[ing] what can be asked, what can be answered, what can be admitted as evidence, what can be considered in a verdict," have distorted the accounts offered by defendants and witnesses. In particular, court records usually deal with sexual acts, shorn of the participants' motives and understandings of those acts and without reference to their lives beyond the moment in which the act took place. Even in regard to the act, court records offer "evidence that has been polluted with authority." Many of those involved in legal proceedings were forced to participate and did so under the threat of punishment. All who testified might have had reasons to lie: to establish innocence or guilt, to pursue animosities or protect friendships, to please the powerful or thwart them.3 Extracting evidence of the behavior and ideas of nonelite subjects from legal records is thus a difficult task.
The distortions and biases of elite sources are a problem faced by all those who study history from below, and, like other social historians, historians of sexuality who use court records have responded by reading against the grain, that is, "for reasons other than those the record-takers intended and for the clients' voices."4 This method rests on the assumption that, as Jennifer [End Page 162] Terry put it in an article particularly influential within the history of sexuality, "the dominant account is never fully capable of containing the subaltern it launches, nor fully able to stabilize itself." Reading against the grain focuses on moments of misunderstanding and conflict—ruptures in the legal process, departures from legal forms, formulas, and language, and information that has not been shaped to fit the terms of the law. In those moments, in those places in texts, can be found the voices of ordinary people.5
But this method provokes the criticism that the acts dealt with by courts are, by definition, not aspects of "normal behavior," for the accused are atypical in their behavior or at least in being caught committing such acts. As such, claim scholars Alan Bray, Randolph Trumbach, and Lawrence Stone, legal records can tell us little about the majority of people and their behavior.6 Using them for that purpose, a recent scholar of gay history has complained, produces "a grim and antiquated picture" that places homosexuals in the "same sexual zoo as exhibitionists, paedophiles, and sex-murderers."7
It is my contention that legal records can be analyzed in ways that overcome those problems. To advance that claim, this article focuses on legal records themselves and offers a primer for how to read them. The first section looks critically at the methods that historians of sexuality have employed in using legal sources, focusing on...