Unchaste and incredible: the use of gendered conceptions of honor in impeachment.

Author:Simon-Kerr, Julia

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.


    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...

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