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Article Excerpt
NOTE CONTENTS
INTRODUCTION I. CHASTITY AS THE THRONE OF WOMEN'S HONOR II. THE LEGAL HISTORY OF GENDERED HONOR: EVIDENCE LAW A. Setting the Stage: Murphy's Legacy B. Reputation Versus Specific Acts: Proving Immorality C. Missouri: A Case Study D. Rationality's Triumph, or Merely a Transformation? III. GENDERED HONOR: MODERN EVIDENCE A. Proving Consent: Gendered Honor Retouched B. Moral Turpitude, Honor, and the Prostitute CONCLUSION
INTRODUCTION
Our legal system hinges on evaluations of credibility. Whom do we expect to tell the truth? When will they tell it? And how do we know they are telling it? These questions must arise, consciously or not, in the mind of any judge or juror who is asked to evaluate witness testimony. The need to judge credibility has been discussed by legal scholars and practitioners and addressed in evidentiary rules dealing with the use of character evidence at trial to impeach witnesses. (1) Missing from this dialogue, however, has been an understanding that the answers to these basic questions about truthfulness have differed on gender lines. (2)
This Note shows that as American courts developed rules for determining what could and could not be asked in order to impeach the credibility of witnesses, they did so against a cultural background that connected women's truthfulness to their chastity. A woman's "honor," or her culturally recognized moral integrity, (3) so depended on her sexual virtue that her credibility suffered from any real or perceived failings of that virtue. Part I argues that for men, while honor, credibility, and a reputation for truthfulness were fairly interchangeable in the popular imagination of the eighteenth century, the story for women was quite different. For women, honor and credibility depended on chastity and on the reputation for sexual virtue. Because female honor emphasized women's reputation for sexual purity and not their reputation for truth telling, truth itself was prescribed differently for women and men. Women were supposed to appear chaste, so they experienced social pressure to dissemble rather than present the appearance of impropriety. Men, to the contrary, were praised most when they were true to their word.
Part II shows how this gender difference resonated in early evidence cases as courts struggled to regulate the impeachment of female witnesses. While many courts questioned the rationality of using evidence of unchastity to prove untruthfulness, particularly just for one sex, others seemed to accept as a given the probative value of such chastity evidence. Even beyond the question of relevance, the unique importance of reputation for women's honor resonated in decisions on the type of proof to be allowed in character impeachment--whether to allow evidence of reputation or specific acts. Early courts' inability to reach a consensus on the relevance of a woman's sexual virtue to her credibility--and, if so, how unchastity evidence should be adduced--illustrates the resilience of the gendered notion of honor. At the same time, that most jurisdictions ultimately prohibited lawyers from impeaching female witnesses with sexual history evidence marks a triumph of legal principle over a pervasive cultural norm. Unfortunately, this rationalist triumph did not extend to rape law.
That women who pressed rape charges were typically forced to respond to sexual history evidence will not surprise readers familiar with the history of rape law. Modern rape scholarship has effectively documented the gender biases that permeated the law of rape, biases that included routine permission to explore the victim's sexual history and thus to undermine her credibility. (4) This Note contributes the simple but important point that the link between female honor and chastity did not arise from the law of rape, but rather predated and informed rape law's development. Far from originating in rape trials and the confusing interplay between questions of consent, credibility, and sexual history, the idea that a woman's chastity informs her credibility so permeated American culture that attorneys in cases involving claims as diverse as title to land, assault, arson, and wrongful death routinely attempted to impeach female witnesses by invoking their sexual histories. (5) While early courts sometimes claimed to admit or exclude this chastity-related evidence depending on its purported relevance to the subject matter of the case at hand, they did not do so consistently. (6)
Three points emerge from Part II's review of early law in this area. First, America's vision of the truthful woman incorporated ideas about her sexual purity and these ideas informed perceptions of the female witness. Second, the idea that an unchaste woman was also a lying woman arose in early impeachment jurisprudence even in cases where the female witnesses were not the victims of sexual crimes. Third, early courts more often than not thought independently and carefully enough to reject a sexual double standard for testing credibility, at least in cases not involving rape.
Part III shows that what seemed like a progressive retreat from the unchaste/incredible equation halted when the issue was rape. In rape cases, unchaste and incredible became unchaste and consenting, a development that might be viewed as a form of "preservation through transformation." (7) If legal logic had enabled many courts to reject the idea that chastity had a bearing on female credibility, the idea resurfaced when the question was posed as one of consent. Although the impossibility of drawing a bright line between evidence admitted to prove consent as opposed to credibility of the victim in a rape case seems obvious and has been well-documented, (8) courts often insisted that sexual history was admissible to prove consent in a rape trial, although not credibility.
Both before the passage of the rape shield laws in the 1970s and more recently in criticizing those laws, legal scholars and others have pointed out an inherent illogic and sexism in the law's approach to rape. (9) The very definition of the crime as the "carnal knowledge of a female forcibly and against her will" meant that courts often required proof of sufficient "resistance" on the part of the woman. (10) Further, corroboration requirements (11) and mandatory jury instructions advising that the rape complainant's "testimony be scrutinized with caution" spoke to the enduring stereotype that "It]ape [was] ... an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, tho never so innocent." (12) Scholars have generally understood this bias to come from the "longstanding suspicion of rape victims" (13) that developed under the "purview of ancient masculine codes" (14) centered around controlling women, often through the use of violence. (15) That discourse has been powerful within its sphere, but it has not fully accounted for the proposition that, for women, "promiscuity imports dishonesty." (16) Section III.A explores the extent to which early rape jurisprudence was formed by the culturally entrenched equation of unchaste and incredible.
While our cultural definition of sexual virtue has shifted drastically since the eighteenth century and even since the initial enactment of the rape shield statutes, the idea that a woman's sexual virtue bears upon her credibility is still present today. As Section III.B shows, modern courts admit evidence of prostitution as a crime bearing on credibility. (17) Although prostitution is no longer defined in gendered terms, women are still far more likely to be prosecuted for prostitution-related offenses. That evidence of prostitution can still be admitted to impeach the female witness shows the continuing vitality of the chastity/credibility equation. Even now, at the beginning of the twenty--first century, courts decide whether or not to believe women based on perceptions of their sexual purity.
The cases this Note examines are illustrative, and the conclusions it draws from them are impressionistic. In the period covered, American courts in various states were developing a jurisprudence on these evidentiary questions that was confused and often confusing. (18) Close and often almost metaphysical distinctions were and continue to be drawn. The distinction between evidence of reputation and evidence of specific bad or immoral acts is one example. This Note does not propose to survey the law in various jurisdictions on the questions of gender, sexual purity, and credibility. Instead, it shows that a connection between the three existed, that it was treated differently by different courts, and that it continues to be a salient connection today, even though it may be differently articulated. Honor, in sum, has been and still is gendered.
I. CHASTITY AS THE THRONE OF WOMEN'S HONOR
Honor is a cultural construct that connotes moral character, integrity, and trustworthiness. (19) As such, it often served at least historically as a proxy for truthfulness in credibility determinations. (20) The more honorable a person was perceived to be, the more believable he or she was. (21) Importantly, as American evidence jurisprudence began to develop in the nineteenth century and courts grappled with the need to make rules surrounding credibility determinations, the understanding of honor differed along gender lines. A woman's sexual virtue was entwined with her truthfulness to such an extent that the two were often perceived as conceptually identical. (22) Justice Sutherland's majority opinion in the landmark Lochner-era case Adkins v. Children's Hospital testifies eloquently, if indirectly, to this reality. (23) In an opinion arguing against special wage rules for women, he proclaimed: "IF]or, certainly, if women require a minimum wage to preserve their morals men require it to preserve their honesty." (24) The Court apparently considered neither rationale good enough to overcome the right to contractual freedom, but its characterization of what was at stake shows how utterly women's sexual purity could and did take the place of truthfulness.
In her 2975 essay, Women and Honor: Some Notes on Lying, Adrienne Rich wrote that "[h]onesty in women has not been considered important." (25) While it would be an oversimplification to maintain that honesty itself was not valued in women, part of Rich's point is that it was sexual virtue, not honesty as such, that traditionally formed the substance of a woman's honor. (26) A woman's moral integrity was defined by her ability to remain chaste, run an efficient household, remain true to her husband, and guide men by her influence in the home. (27)
Rich describes women's honor as having to do with "virginity, chastity, [and] fidelity to a husband." (28) The Oxford English Dictionary (OED) provides a similar definition for the honor "of a woman": "[c]hastity, purity, as a virtue of the highest consideration; reputation for this virtue, good name." (29) The dictionary provides no parallel definition for specifically "male" honor, leaving the impression that all other definitions, by default, refer to men and not women. (30) The OED's examples of the uses of these definitions show how the definitions equate honor with truth and justice, and even specifically with men. For example: Wordsworth writes, "Say, what is Honour? Tis the finest sense Of justice which the human mind can frame." (31) In a 1708 example from Susanna Centlivre's Busie Body, honor as a bond interacts directly with the female form of honor--chastity. Mrs. Centlivre is quoted as follows by the OED, "He had given her his Honour, that he never would ... Endeavour to know her till she gave him leave." (32) The man's honor is his bond, his sworn statement to respect the woman's honor, her chastity. If he does not hold to his promise, he will have dishonored himself by being false. (33) Thus, the oath, truth telling, and a sense of justice all combine to form a male morality that emerges in stark contrast to the prescriptions of chastity and purity that define female honor.
Early references to honor in American jurisprudence show that "[h]onor was indisputably a gendered system." (34) A selection of pre-1900 cases reveals that when referring to transactions among men, advocates and judges commonly and unselfconsciously employed the term honor to convey the idea that a man will be true to his word. (35) Justice Greene, writing for the Iowa Supreme Court in 1848, attempted to chart the relation between honor and honesty for men. According to the Justice, honesty was a necessary, though not a sufficient element of honor. Thus, though "to be honorable, a man must be strictly honest; still, he may be honest without being honorable." (36) Nonetheless, a dishonorable man would generally be perceived as untrustworthy. For this reason, siblings would go to great lengths to "save the honor" of a defaulting brother by paying or taking on his debts. (37) The resulting loss of credit in the community was so severe that it was to be avoided at all costs. (38)
References to women's honor in pre-1900 cases do not invoke the transactional oath or bond. (39) As the OED definition predicts, the word "honor" as applied to women, when it did come up in the courtroom, meant chastity or fidelity to a husband. The argument in a mid-nineteenth century New Hampshire breach of promise suit highlights the conceptual divide between male honor, or bond keeping, and female honor, or chastity. (40) The male plaintiff had accused a woman of breaching her promise to marry him and offered evidence to show she had instead married another man. In seeking to exclude that evidence, the defense lawyer argued that it would only be relevant if it "went directly to prove acts inconsistent with the honor" of his client. (41) By invoking his client's honor, however, the attorney did not mean to refer to whether or not she broke her word. Instead, he used the word to refer to her chastity, arguing that the prosecution's evidence was irrelevant since it could, at most, prove acts of unchastity, not her marriage to the other man. Thus, even when a woman's pledge was the issue in the case, when defense counsel spoke of her "honor," he did so to connote chastity, rather than truthfulness. (42)
Not only were women supposed to be chaste, loyal, and pure; they were also supposed to maintain a reputation for being so. The late-eighteenth and early-nineteenth century discourse on women's honor illuminates the tension between valuing reputation and valuing truth telling in its own right. (43) Jean-Jacques Rousseau elaborates one of the most repercussive views of the "moral difference between the sexes" in Emile, his influential treatise on education. (44) Available in translation in late colonial America and in the early years of the Republic, Rousseau's "work on women had very definite and far-reaching American influence." (45) According to Rousseau, the key to female virtue lies equally in the thing itself and in its appearance. He justifies his claim that women must maintain both their chastity and their reputations by referring to the difficulty of establishing paternity. If a woman does not preserve her reputation, a husband may doubt his wife's fidelity. (46) This doubt can in turn lead to the husband's inability to love his children because he is "haunted by the suspicion that this is the child of another." (47) Thus, a husband's doubt of his wife's fidelity is as damaging as her actual infidelity would be. By such reasoning, Rousseau completes the path from a woman's failure to appear virtuous to the disintegration of her family. (48)
Using the word honor, Rousseau defines what he sees as the moral imperative for women. He writes:
Worth alone will not suffice, a woman must be thought worthy; nor beauty, she must be admired; nor virtue, she must be respected. A woman's honour does not depend on her conduct alone, but on her reputation, and no woman who permits herself to be considered vile is really virtuous. (49)
Unlike male honor, for Rousseau, women's honor depends on "what people [will] think." (50) Thus, a woman must both be pure and appear to be pure in order to be virtuous. Rousseau goes on to describe a concern for reputation as the "grave of a man's virtue and the throne of a woman's." (51) By creating such a startling division between male and female definitions of honor, Rousseau problematizes truth for women. Whereas men may "defy public opinion" as long as they do right, doing right is only "half" the task for women. (52) With this pivotal assertion, Rousseau implicitly denies women the freedom to act on conscience. By admitting that doing right could involve defying public opinion, he indicates that society's prescriptions may not always encourage truth. And if we acknowledge that actual truth and virtue are often misperceived by society, women's need to maintain their reputations may create the paradoxical situation in which they are socially required to deceive. Thus, women's honor not only differs from men's in its emphasis on purity or loyalty to one's spouses, but it also equates credibility with the appearance of chastity while ignoring actual truthfulness as an independent value.
In her Vindication of the Rights of Woman, published thirty years after Emile and a favorite of early feminists in the United States, (53) Mary Wollstonecraft rejects Rousseau's definition of female virtue precisely because of the insidious effect it has on truth telling for women. (54) She traces the path from what Rousseau called women's "throne"--her reputation--to deceit. Wollstonecraft argues that women necessarily lose sight of the divine spirit of truth because "it is the eye of man that they have been taught to dread." (55) This dread of man's condemnation or the loss of man's respect is also reinforced by society and its products. Wollstonecraft explains, "Advice respecting behaviour, and all the various modes of preserving a good reputation, which have been so strenuously inculcated on the female world, [are] specious poisons, that incrusting morality eat away the substance." (56) She eschews the "puerile attention to mere ceremonies," which she sees as corrupting women's sense of true values. (57) In a perfect society, the good woman and the reputedly good woman would be the same. In the kind of imperfect society that Rousseau himself exposes in Emile, however, social prescription and truth are not always aligned. Thus, Wollstonecraft highlights a logic that meant both that chastity and truth telling were one and the same for women and that even chaste women might have to lie in order to keep up appearances and maintain their credibility. In addition to its likely contribution to the enduring stereotype of the female liar, (58) this entwinement of chastity and honor meant that for a woman, if either her chastity or reputation for chastity were lost, her honor and reputation for truthfulness went with them.
Women's honor, then, encompassed a fraught set of values that privileged chastity and the reputation for sexual virtue over truthfulness. As a result, when a woman was "unchaste" or appeared so, she not only lost her honor in the eyes of her community, but also her credibility.
II. THE LEGAL HISTORY OF GENDERED HONOR: EVIDENCE LAW
If this eighteenth- and nineteenth-century cultural discourse suggests gendered answers to the basic questions about truth telling--"Whom do we expect to tell the truth? When will they tell it? And how...
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