Legal discourse and the cultural intelligiblity of gendered meanings¹

Abstract

This paper considers the methodological challenges that 'post-modern' approaches to gender (Cameron 2005) pose for the field of language and gender. If we assume that gender cannot be 'read off' the identities of speakers, but rather is a social process by which individuals come to make cultural sense, then how do we best investigate this process? As Stokoe (2005) and Stokoe and Smithson (2002) have argued, it is problematic within such frameworks to conduct research that pre-categorizes individuals as women and men, since it is individuals' constitution as women or men that should be the issue under investigation. Indeed, for Butler (1990: 145), to understand 'identity as a practice . . . is to understand culturally intelligible subjects as the resulting effects of a rule-bound discourse' (emphasis in original). This suggests that we attend to cultural norms of intelligibility (i.e. the 'rule-bound discourse') and their effects. Following Blommaert (2005) and Woolard (forthcoming), in this paper I investigate a speech event, a courtroom trial dealing with sexual assault, where understandings of social identities and categories (i.e. 'norms of intelligibility') are not only evident in the local talk of speakers and hearers, but also in the recontextualizations of this local talk by powerful institutional representatives (i.e. judges). By examining such recontextualizations of courtroom talk, gender is not 'read off' the identities of individuals (i.e. courtroom participants) but rather investigated as it appears in the cultural sense-making frameworks of judges. Moreover, given that judges are the ultimate interpreters of the linguistic representations of courtroom talk, this paper also demonstrates some of the social consequences associated with the performance of culturally intelligible and unintelligible gendered identities.

The Handbook of Narrative Analysis

“…The idea that gendered ideologies are at play when adjudicators decide between conflicting stories in the courtroom is also evident in the work of Ehrlich (2007). Ehrlich analyzed both the trial proceedings and the judicial opinions of a 1995 Canadian rape trial, Her Majesty the Queen v. Ewanchuk, where two lower courts acquitted the accused of sexual assault, after which the Supreme Court of Canada overturned this acquittal and convicted the accused.…”

“…But what kind of cultural sensemaking framework equates passivity with consent? Ehrlich (2007) argued that culturally normative ideas about women's passive, acquiescing sexuality seemed to be in play when the lower courts ruled that a woman who is emotionless and "frozen" in her demeanor implies consent. In other words, the trial judge and the Alberta Court of Appeal judges seemed to view sexual passivity as appropriately feminine and, as a result, what the complainant described as submitting to sex out of fear became intelligible to these courts as consenting to sex, or at the least, implying consent to the perpetrator.…”

“…In spite of widespread reform to sexual assault and rape statutes over the last four decades in Canada and the United States, cultural mythologies surrounding rape continue to inform the adjudication of rape trials (e.g., Coates, Bavelas, and Gibson 1994;Coates and Wade 2004;Ehrlich 2007;Tiersma 2007). Tiersma (2007: 93), for example, makes the point that within the context of rape law, juries and judges must often draw inferences in determining whether a woman has consented to sex or not and these inferences may be based "on questionable or offensive (some would say: patriarchal) assumptions."…”

Quoting from the case file: How intertextual practices shape discourse at various stages in the legal trajectory

“…Other research has shown, both in adversarial (e.g., Matoesian, 2001;Ehrlich 2007) and inquisitorial legal systems (e.g., Sneijder 2011, Van der Houwen 2013, that the prevailing "referentialist" linguistic ideology (which holds that the meaning of quoted discourse exclusively resides "inside the words" of the quoted text) entirely draws out of sight the strategic recontextualizations which this text is subject to as it is incorporated in the speaker's new discourse. Direct reported speech, in which the speaker at first sight merely "animates" (Goffman 1981) what another speaker presumably said, thus allows legal actors to subtly fuse the quoted discourse with their own voice-which is why it constitutes such a powerful rhetorical device.…”

“…The assumption that a document quoted in court is a stable entity "hides the diachronic instability of the discourse from which text emerged" (Rock et al, 2013: 3). Throughout the various nodes of the legalbureaucratic trajectory of a text, discourses are continually appropriated by new legal actors who subject them to "de-" and "recontextualization" (Bauman and Briggs, 1991), as they insert these discourses in their new textual environment-a process that goes hand in hand with subtle transformations that may nevertheless have strong legal consequences and that are open to strategic manipulation (for some particularly vivid examples, consider Matoesian, 2001;Ehrlich, 2007;Haket, 2007).…”