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A. Cheree Carlson - The Crimes of Womanhood: Defining Femininity in a Court of Law

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Cultural views of femininity exerted a powerful influence on the courtroom arguments used to defend or condemn notable women on trial in nineteenth-century and early-twentieth-century America. By examining the colorful rhetorical strategies employed by lawyers and reporters of womens trials in newspaper articles, trial transcriptions, and popular accounts, A. Cheree Carlson argues that the men in charge of these communication avenues were able to transform their own values and morals into believable narratives that persuaded judges, juries, and the general public of a womans guilt or innocence.

Carlson analyzes the situations of several women of varying historical stature, from the insanity trials of Mary Todd Lincoln and Lizzie Bordens trial for the brutal slaying of her father and stepmother, to lesser-known trials involving insanity, infidelity, murder, abortion, and interracial marriage. The insanity trial of Elizabeth Parsons Ware Packard, the wife of a minister, resulted from her attempts to change her own religion, while a jury acquitted Mary Harris for killing her married lover, suggesting that loss of virginity to an adulterous man was justifiable grounds for homicide. The popular conception of abortion as a womans crime came to the fore in the case of Ann Loman (also known as Madame Restell), who performed abortions in New York both before and after it became a crime. Finally, Alice Rhinelander was sued for fraud by her new husband Leonard for passing as white, but the jury was more moved by the notion of Alice being betrayed as a woman by her litigious husband than by the supposed defrauding of Leonard as a white male. Alice won the case, but the image of womanhood as in need of sympathy and protection won out as well.

At the heart of these cases, Carlson reveals clearly just how narrow was the line that women had to walk, since the same womanly virtues that were expected of them--passivity, frailty, and purity--could be turned against them at any time. These trials of popular status are especially significant because they reflect the attitudes of the broad audience, indicate which forms of knowledge are easily manipulated, and allow us to analyze how the verdict is argued outside the courtroom in the public and press. With gripping retellings and incisive analysis of these scandalous criminal and civil cases, this book will appeal to historians, rhetoricians, feminist researchers, and anyone who enjoys courtroom drama.

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The Crimes of Womanhood The Crimes of Womanhood Defining Femininity in a - photo 1
The Crimes of Womanhood
The Crimes of Womanhood
Defining Femininity
in a Court of Law
A. CHEREE CARLSON
University of Illinois Press
URBANA AND CHICAGO
2009 by the Board of Trustees
of the University of Illinois
All rights reserved
Manufactured in the United States of America
c 5 4 3 2 1
Picture 2This book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
Carlson, A. Cheree
The crimes of womanhood : defining femininity in
a court of law / A. Cheree Carlson.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-252-03401-5 (cloth : alk. paper)
1. Sex discrimination against womenLaw and
legislationUnited StatesHistory.
2. Female offendersLegal status, laws, etc.
United StatesHistory.
3. WomenUnited StatesSocial conditionsHistory.
4. Femininity in popular cultureUnited StatesHistory.
5. FemininitySocial aspectsUnited StatesHistory.
6. TrialsUnited StatesHistory.
I. Title.
KF4758.c368 2009
345.73'03dc22 2008027211
To Leonard F. Carlson
Sorry it took so long, Daddy.
Contents
3. The Mad Doctors Meet McNaughton:
The Battle for Narrative Supremacy in the Trial of Mary Harris
4. True Womanhood and Perfect Madness:
The Sanity Trial of Mary Todd Lincoln
5. Womanhood as Asset and Liability:
Lizzie Andrew Borden
6. Bodies at the Crossroads:
The Rise and Fall of Madame Restell
7. You Know It When You See It:
The Rhetorical Embodiment of Race and Gender in Rhinelander v. Rhinelander
Acknowledgments
This book was a long time from start to finish. Were it not for the efforts of many friends and colleagues it would have remained unfinished. My deepest appreciation to all of you, with a special shout-out to:
Michelle Holling, who was there at the start.
Marouf Hassian and Tom Nakayama, who stepped into the breach.
The staff at Rehab without Walls in Phoenix, Arizona, who got me back to work.
And especially to Peter Hom, who stuck with me through the absolute worst.
My thanks also to Laurie Matheson at the University of Illinois Press, Sonja Foss, Martha Solomon Watson, and several anonymous readers for their comments and guidance on the manuscript in its various incarnations.
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 culturefrom classical novels to comic books.
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 storieseven 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 offered to individuals who can acquire a university education. In order to apply these linear models of thought, one must be familiar with the specific field of argument that supplies the premises upon which to base new contentions. Law is one of the least accessible of those fields. Most legal arguments are based upon premises embedded in centuries of precedents and practices, which are hopelessly arcane to the uninitiated.
Although many fields are similarly difficult to grasp completely, the legal field is one wherein the insiders craft legal standards to which even outsiders must adhere. This becomes a problem when the law is asked to render judgments in what might be considered moral arenas, such as practices related to gender or culture. What is a sensible practice to one group might be considered evil by another, and the law often comes down upon one side or the other without making its decision processes understandable to either group. Outsiders cannot easily attack, defend, or ameliorate the new practices that result from those decisions.
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