Published: Dec. 1, 2000 By

From the trial of Socrates to the dozens of proceedings reported daily in the press, the popular trial has been active as a rhetorical form, a social practice and a symptom of historical change

– Robert Hariman

Every man I meet wants to protect me. Can’t figure out what from.

– Mae West

[1]   In 1977 an East Lansing, Michigan woman named Francine Hughes, having suffered seventeen years of domestic abuse, set her sleeping husband’s bed on fire, took their three children, and fled. In a precedent-setting case, she was, astoundingly, acquitted of murder and set free. From this trial, in which the defense was not self-defense, (she was clearly in no immediate danger when she acted), but temporary insanity due to years of psychological and physical abuse, came what is now widely known as the “battered woman defense.”

[2]   This trial was significant for a number of reasons. For one thing, it represented a major victory for feminists, who had coined the phrase—now universally accepted as part of everyday parlance —”domestic violence.” Indeed, feminists, since the late 1960s, had been agitating for recognition of, and redress from, this all too common, but until then largely hidden—or worse, “naturalized”—form of gender oppression. “Domestic squabble” was the term typically used by police to describe wife beating, which, because it occurred within the private sphere, in which “a man’s home was his castle,” was not seen as “abnormal,” much less criminal.

[3]   But it was not until seven or eight years later, when an independent television producer named Robert Greenwald sold the story to a major television network as a made-for-TV movie, or docudrama, that the issue of domestic violence dramatically entered public consciousness and significantly influenced law makers and other institutional authorities to legislate reform measures to address the problem. When The Burning Bed which dramatized Hughes’ experiences, her “crime,” and the trial in which she was exonerated—aired to an audience of 75 million in 1984, the battered women’s shelter movement gained momentum; police officers began taking “sensitivity training” for the handling of what was now recognized as a violent crime, punishable by law; women imprisoned for killing abusive partners were given clemency in significant numbers; talk shows, soap operas, police dramas and even sitcoms began regularly featuring storylines and segments addressing the issue; and Americans generally began seriously to confront and debate it.

[4]   Thus, the political role and function of these programs can best be understood within the larger context of public sphere debates—primarily as articulated by Habermas(1984;1987;1989)— about the role of television generally in articulating and negotiating social and political issues. For, as Habermas has noted, if there is any arena which can properly (or potentially) be thought of as a public sphere in today’s electronically mediated world, it is the mass media. For with all its contradictions and limits, it is, in principle, the only potentially viable candidate to play the role of universal public sphere. And as much as any other aspect of today’s globalized, corporatized universe, it offers fertile theoretical ground for speculation on how such a system might be made to operate in an ideal world. For it is the only arena in which “members understand themselves as part of a potentially wider public . . . a public at large” (Eley, 67) and “the only form of expression that links the members of society who are merely ‘privately’ aggregated . . . by combining their unfolded social characteristics with one another”(Kluge, 66). And from a critical point of view, the ideal of a democratic public sphere has functioned as a useful “mobilizing fiction” (Robbins, 3) in discussions of the intersection of media and democracy. In particular it has been important in pointing to the coercive role of the state in regulating media and the profiteering, essentially cynical role of the corporate media in undermining the democratic ideals which ostensibly govern licensing and regulating procedures (Livngstone and Lunt; Corner; Liebes and Katz, Rapping, 1992, 1998, 2000; Morley ).

[5]   Out of all of this theoretical development in the areas of audiences, publics and the media as public sphere, has arisen a variety of interesting studies of the uses of the media to serve relatively democratic, affirmative ends. Nicholas Garnhan has argued influentially for the revitalization of the public service ethos in the context of current media conditions. James Curran has argued in a similar vein that the media today have the potential for allowing for radical-democratic initiatives. And Paddy Scannell has subtly analyzed the various contradictions inherent in the system which allow for certain amounts of participation and democratic results while also imposing limits and restrictions upon public access.

[6]   It is in the context of these theoretical discussions of television and the public sphere: it’s power, within limits, to serve progressive ends; and its more usual role— given the needs of government regulators and corporate sponsors—to reinforce more conservative, hegemonic norms—that my discussion of television’s changing representations of the issue of domestic violence needs to be understood. For if, in the early 1980s, network television was apt to present what I will argue were highly progressive, feminist-informed portrayals of the issue— its root causes and its potential cures—by the 1990s, as the nation moved rightward generally, the representation of this highly charged issue shifted dramatically to reflect far less progressive approaches to the problem, approaches which emphasized a ‘law and order’ mentality favoring punishment of male violators rather than the earlier approach presented in movies like The Burning Bed, in which the liberation of women from the threat of violence was understood to involve a restructuring of social institutions in ways which empowered women to free themselves physically, economically and psychologically from male control and violence. And, as I will further argue, this shift in ideological perspective was achieved primarily through the demise of the classic social issue docudrama, and its replacement—in the age of televised trials as major media events—by a new genre invented by Court TV in which actual trials are condensed into one hour docudramas, but in which the entire issue is presented and analyzed solely in terms of legal and criminal justice terminology and assumptions, rather than the broader social analyses provided by early docudramas.

[7]   For it is more than interesting to note that in recent years, television has continued to treat matters of gender violence—rape, date rape, sexual harassment, incest and domestic abuse—regularly, and for a variety of good reasons: it’s sexy; it’s violent; and it addresses serious issues. But it is not only television that seems to have selected this issue, among the myriad others raised by feminists since the late 1960s—child care; health care; economic equity; employment discrimination; reproductive rights; lesbian rights; and on and on—to latch onto and make its own. Especially in recent years, when—paradoxically— feminists are suffering depressing losses in so many other arenas of struggle, politicians of the left and right, in their eagerness to win the “women’s vote,” have become ever more vocal in their proclaimed commitment to the battle against domestic and sexual violence.

[8]   That gender violence has continued to be a popular theme in both fictional and nonfictional television programming is hardly surprising given its sensational nature and its continued importance in public policy and criminal justice debates. But the dominant approach to the subject has shifted dramatically in the years since Robert Greenwald made his influential movie. Indeed, the docudramas and other made-for-TV movies about violence against women which still come out in droves are far less socially provocative and insightful than The Burning Bed or Silent Witness, another, more loosely based-on-fact movie about a gang rape, which aired a year later. But there is a television genre which has emerged to take the place of the more serious 1980s movies: the live televised trial. For the coming of cable has brought with it an onslaught of representation and discussion of violence against women, the likes of which Robert Greenwald, whose possible venues were only the three major networks, could only dream of. For cable channels like CNN, CNBC and MSNBC, and Court TV— which have the time and desire to give inordinate amounts of attention to an issue so gripping and dramatic—have made criminal and civil trials involving sexual violence mainstays of television fare. And Court TV especially, which has had a particular interest in sensational trials, has run gavel to gavel coverage of a very large number of trials in which some variety of violence against, or harassment of, women or girls figures. Indeed, its nightly “Crime Stories” series—in which its fully televised trials are edited down to one hour documentaries featuring trial footage, interviews with principals, and commentary by a Court TV host or hostess—tend to feature, and rerun endlessly, trials involving domestic and sexual violence in ways which capitalize on the sensationalism of the topic, even as they comment— explicitly and more subtly—on the problem and its solutions. But this series is very different in its approach to, and implications about, the problem and its possible solutions than the earlier docudramas.

[9]   In this paper, I want to compare the way in which representative docudramas of the early 1980s treated the issue of gender violence and the way it is treated in the “Crime Stories” mini-docudramas as a way of drawing attention to the link between forms and genres of representation and the political and ideological implications of such generic choices. For it is in the shift from the TV movie/docudrama—a “long form” genre in which social issues are dramatized through the experiences and conflicts of a single set of “based on fact” or purely fictional characters and events —to televised courtroom trials in which the drama takes place entirely within the context of the courtroom itself, that one sees reflected the parallel shift in dominant ideological and policy approaches to gender violence— its nature, its roots, its social and moral implications, and its appropriate “solutions.”

Representation as Social Reproduction

[10]   Robert Hariman, in his argument for treating trials as a rhetorical genre, defines a genre as a “form of social knowledge” which reflects “what people ‘know,’ in the sense of what they rely upon when otherwise in a condition of change, disorientation, or trauma. That is why,” he argues, “generic forms that have been relaxed during periods of routine social exchange predominate in moments of social and political transition.” For “a genre exists only as long as others agree that it exists;” and one’s “knowledge of the genre must be matched by others’ willingness to recognize its forms and authority”(1990, 19). In other words, genres reflect the beliefs and assumptions about reality and morality that dominate their time. And, while in times of relative social harmony they tend to remain stable and go unquestioned, in changing times, they must be amended, sometimes radically, in order for people to recognize and share the new set of dominant assumptions and beliefs.

[11]   Trials themselves, however, as Hariman notes, have continued to be generic staples of social knowledge at least since Socrates—especially in times of social and ideological change—because, in their very adversarial structure, they “contain explicitly the problems of comparing and evaluating discourses before an audience of ordinary citizens”( 23). And as film, and then to a much greater extent, television, have taken up the trial and created for it its own major genre, “the courtroom drama,” the social importance of the trial as dramatized social knowledge has grown in importance, culturally and ideologically.

[12]   As Lisa Cuklanz notes, in discussing the media’s inordinate interest in rape and rape law, in news as well as drama, the media have made the court trial the primary focus around which public debate of this issue (and I would add all other forms of gender violence as well) centers. But she goes further in analyzing the political role of such media coverage, suggesting that media genres can be used in a variety of ideological ways. “Highly publicized trials are in one sense vehicles of containment and control,” she writes, for the media tend always to define and debate social issues within the limits of current hegemonic norms. But “they can also be trumpet calls that bring attention to the issues they involve”(36) in more positive and progressive ways.

[13]   Indeed, as many feminist political theorists have argued, as a result of the rise and influence of feminism, feminism has become what Nancy Fraser terms an “oppositional force, intervening, in sometimes quite effective ways, in public sphere debates about gender politics.” Fraser speaks of television as a central element of the “public sphere,” within which feminists struggle to revise hegemonic discourses, as part and parcel of their other agitational and discursive activities, in the classroom, the courtroom, the streets, wherever. For “However limited a public may be in its empirical manifestation at any given time,” she writes, “its members understand themselves as part of a potentially wider public” whose goal it is to enter the “structured setting where cultural and ideological contest or negotiation among a variety of publics takes place” in the interest of realizing their “emancipatory potential”(56-80). This has been particularly true in cases involving gender violence, because the role of feminists in putting this issue on the public agenda has been so central. And feminism of course is a controversial political movement—and term—about which public opinion is radically divided ; one which, historically, has risen and fallen in public recognition and sympathy according to the political tenor of the times. Thus when rape and other forms of gender violence gained media attention, its presentation and reception directly reflected the influence of feminism. For, as political theorist Kathleen Jones has noted in summarizing the assumptions about law and justice that have historically prevailed in American jurisprudence, “The standard analysis of authority in modern Western political theory begins with its definition as a set of rules governing political action, issued by those who are entitled to speak.” But these rules traditionally “have excluded females and values associated with the feminine.” Thus, the “dominant discourse on authority,” in placing “strict limits on the publicly expressible, and limit[ing] critical reflection about the norms and values that structure ‘private’ life and which affect the melodies of public speech,” has traditionally marginalized women’s voices and experiences within public arenas such as the courtroom (119;130-1).

[14]   But the impact of feminism on public discourse and debate, by the late 1970s, had, as Cuklanz documents, begun to alter this hegemonic norm. Rape trials in particular (and again, I would add, trials dealing with gender violence generally), did indeed begin to incorporate feminist demands for legal reform in ways which vexed and complicated legal procedures. For the first time, traditional assumptions about the “normality” of gender violence and the victim’s responsibility for her own abuse began to be challenged in courtrooms; and women’s previously silenced, hidden or publicly distorted experiences began to be publicly voiced, heard and discussed. This, for Cuklanz, was a particularly significant victory for feminists. For it is through “discussion of rape trials [that] the climate of public opinion has been adjusted to a slight degree as writers and observers have attempted to adjudicate between a traditional view of rape and a revision based on female experience and voice.”(7).

[15]   This is an observation that holds for public discussions of gender violence generally. For as Susan Griffin has noted, in the struggles for rape law reform, “public expression itself is an achievement.” Thus the power of public speak-outs in which women “spoke bitterness” about their previously hidden and silenced pain. For such occasions, according to Griffin, gave women “the so desperately needed time to speak about a long hidden injury.” And through these events, held all over the nation over a period of several years, enough collective strength was generated “to change the more outrageous injustices”(quoted in Cuklanz, 15). But if public speak-outs were instrumental in organizing forces to demand legal redress, the public impact of hearing and seeing such bitterness and its roots presented to an audience of millions, and over time—given reruns, video rentals, community and classroom viewing, and so on— even hundreds of millions, must surely be estimated as enormous. Thus, in The Burning Bed and Silent Witness, traditional assumptions about gender violence—that it is “natural” or somehow “asked for”—are challenged, when the voices and experiences of women themselves are heard and seen in the context of the legal arena. And in a similar way, the “Crime Stories” about domestic abuse and rape have allowed the voices and experiences of victims to be heard and recognized in court proceedings in which, as feminists have demanded, gender violence is inscribed as criminal and punishable by law.

[16]   But there is an enormous difference between the waywomen’s voices and experiences are heard, described or dramatized—the way the truths of their experiences are absorbed and evaluated— in the two genres’ uses of the courtroom. And in that dramatic difference is embedded a plethora of diametrically opposed assumptions about why and how such violence occurs and what feminists can and should be doing to stop it. Indeed, in comparing these forms, feminists’ demands that women’s voices, the “truths” of their experiences, be heard, suddenly emerge as more complicated than they may seem. For in a court of law, the word “truth” can be tricky. One takes the stand in a court of law and “swear[s] to tell the truth, the whole truth and nothing but the truth.” But as anyone who has studied or participated in the adversarial system of trial law knows, it is not really “the truth” that justice rests upon, but rather the version of truth that is most compelling to a judge or jury. The alleged victim may say one thing and the defendant, or his or her representatives, something quite different, even when the essential “facts” are agreed upon by all concerned. Nor is telling, in the sense that narrative theorists may use it, sufficient to make the facts and experiences surrounding a crime legally significant or compelling. One must also tell them in a certain way. For in the courtroom the telling must always conform to the norms of legal discourse. And the law, unlike narrative fiction, drama or autobiography, has very strict rules about how one may say or show her experiences and feelings or attest to her “truth.”

[17]   Thus, the extent to which a genre makes use of a courtroom setting in addressing feminist issues affects the way in which women’s stories are allowed to be told and—more importantly perhaps—what redress for their suffering they are allowed to receive. In fact, the extent to which a genre uses a courtroom setting implicitly reflects the extent to which its producers have chosen to define the issue at hand in terms of legal and juridical discourses and assumptions. And so, while trials do make perfect settings for “comparing and evaluating discourses” in times of social change, they also carry within them the formal requirement that the social issues being addressed are placed narrowly within the framework of the law, with all its rules about what and how stories can be told, and in what ways they can be resolved.

[18]   The Burning Bed and Silent Witness both use the courtroom and the framework of law and criminal justice as centrally as do the “Crime Stories,” then. But while, in “Crime Stories,” the courtroom dominates while other material is decidedly subordinate; in the docudramas mentioned, the reverse is true. Indeed much of the “truth” told from the female victims’ and spokespersons’ perspective is heard and seen in a variety of settings outside the courtroom before it ever reaches the trial itself. And that is only the beginning of how the two forms differ in their treatment of the relationship between gender violence, society and the law.

That Was Then and This Now: The Docudrama as Women’s Genre

[19]   Even as early as 1974, the docudrama format had begun to reflect feminist influences on attitudes toward rape. For it is women—increasingly influenced by feminist thinking—who have always made up the majority of the TV audience and bought most of the advertised products. Thus the number of early TV movies which addressed, from an at least implicitly feminist perspective, issues such as rape. Among these films, The Burning Bedstands out as a landmark in media representations of gender violence because of its perspective and narrative strategy. Beginning with scenes of the murder itself, and then of Hughes’ initial meeting with her court-appointed attorney, it continuously flashes back to the history of the Hughes’ marriage and its disintegration, with regular interruptions of the narrative to return to the prison conference room in which the attorney attempts to fashion a defense for a crime so heinous and shocking by “normal,” that is to say patriarchal, standards. Indeed, the very fact that a major network would present a film in which a woman sets her husband’s bed on fire and walks free from the courtroom in which she is tried and judged is itself so remarkable that it alone would make the film politically and hegemonically noteworthy. For the movie challenges what until then had been hegemonically unchallengeable ideas about who has a “right” to commit violence, and under what conditions. Men, of course, have long been authorized to kill—most typically in war, as law enforcers, and, until feminism challenged this, in the privacy of the patriarchal home. But women who kill, or commit any act of physical aggression, have always, according to the essentialist norms which govern patriarchal law, been viewed as outrageously “unnatural,” no matter what the circumstances.

[20]   But in allowing Francine Hughes to tell “her story, in her own words,”— as her attorney puts it in his opening arguments—the movie allows us to see this “abnormal” act in its social, cultural, institutional and economic context and thus to find it more “normal” than the laws and ideological assumptions that prohibit it. Thus the importance of the previously silenced victim’s voice throughout the narrative. Beginning with her marriage, in the early 1960s, Hughes—first in voice over introductions to flashback scenes, and later on the witness stand— relates a series of events and encounters—with family members, the social welfare bureaucracy, the police, and so on—in which it becomes startlingly clear that she has been entangled in a set of sexist (and classist) technologies of discipline and control, (to use Foucaultian terms), from which she could not escape. She is pressured into marriage—although she dreams of “getting away, getting a job, or something”—because it is expected of women, especially working class women. Her mother and her in-laws think nothing of her husband Mickey’s public assaults on her, and tell her that “she’s made a hard bed” and must lie in it, and that men are “just made that way” and “don’t really mean it.” She herself, again typically, believes that she must have done something to deserve such treatment and vows to “be a better wife” and to “try to figure what Mickey wants.” When things get so unbearable that she calls the police they do nothing. Nor do the welfare workers who embroil her in a maze of complicated, incomprehensible, illogical and—most poignantly—wholly ineffective “solutions.” Thus the drama—as told in Hughes’ words and seen from her own point of view— hammers home, in a compelling, even shocking, way, the structural blockages to women’s emancipation from male abuse. And when the actual courtroom scenes begin, the viewer has already seen and heard enough to be sensitized to the similarly biased assumptions and processes of the legal system—as represented by the prosecuting attorney—which can only view such a woman as a vicious criminal.

[21]   It is also important, in this case, that the battered woman herself appears not as a victim, accusing her abuser and demanding punishment, but rather as a defendant accused of a violent crime, a woman who has struck out as an agent in an effort to free herself and her children from years of institutionalized victimization. Indeed, her husband Mickey is himself portrayed in terms of social and institutional norms. He is no caricatured monster, perceived as simply evil, as abusers in later TV movies have been. He is rather a somewhat pathetic loser, unable to hold a job or gain any status in society, and driven to drink and domestic violence out of a frustrated need to “feel like a man,” in a sexist and classist society in which such men are indeed “given permission” to take out their frustrations and failures on women and children.

[22]   Silent Witness is equally clear in its focus on family and institutional norms by which women are held in disciplinary control while men are free to abuse them, as though such behavior were perfectly “normal.” The movie, based very loosely on the Big Dan’s Tavern gang rape of a female patron , upon which the theatrical film The Accused was also based, challenges traditional assumptions concerning rape through a narrative strategy quite different from The Burning Bed. The heroine, Anna Dunne, is not the victim but the sister-in-law of one of the rapists, and a witness to the crime. But again, the crime, and the trial are placed within the context of gendered family norms, as well larger institutional and social beliefs and processes, which act as powerful disciplinary structures. And again, it is the larger narrative of family and social dynamics within which the victimization of one woman, and the ultimate rebellion of another are portrayed. For Anna, at first reluctant to come forward as a witness against a family member, in the end, heroically, does just that. The movie movingly portrays the female bonding of two women of very different social stations; even as it challenges patriarchal distinctions between “good” and “bad” girls which serve to divide women and keep us in our respective places. For the actual victim, Patti, is a woman of dubious reputation and credibility. She is known to drink alone at bars quite regularly and has a history of alcoholism and blackouts which make her a less than reliable witness. But Anna cannot avoid a growing sense of identification with her, especially after visiting her and hearing her—in her own words—tell the story of her own sad life. And when Patti commits suicide, after a grueling day of brutal attack by the rapists’ attorney, Anna is compelled to come forward and testify in her behalf, although it costs her her own reputation and the security and acceptance of her family. For when Anna comes forward, she is indeed ostracized and vilified by her in-laws, who, playing on her loneliness and vulnerability, go so far as to pay an old school friend to seduce her, so that they can claim that she, like Patti, is a “bad” woman, and so not credible as a witness to the “truth.”

[23]   Like The Burning Bed then, the movie manages to place the entire legal system—the courtroom and the trial— within the larger context of a social environment in which the roots of gender violence and their naturalization within sexist institutions are exposed and critiqued, through the voices, experiences and actions of women, first as victims and then as agents. And, likeThe Burning Bed, the male abusers are similarly portrayed within the context of the social norms and institutions which allow—indeed socialize— them to commit such vicious acts without guilt or remorse. They simply cannot see the horror of their deeds, while their wives and mothers, to maintain their own (dependent but secure and respectable) positions within the family, cannot acknowledge it, even to themselves.

[24]   In both these movies, then, there is a serious critique of gender violence and a dramatically effective portrayal of its social roots and of the moral heinousness of a society which condones or ignores it. And in both there is a heroine who resists, and an (at least) implicit demand not only for legal but social reform. Indeed, these films are exemplary narratives of female disciplinary control and resistance. They are, in that sense, in keeping with Foucaultian notions of how power operates within liberal democracies; how it can, on occasion, be resisted; and how that resistance can even lead to progressive reforms in which the disciplinary subject may gain some measure of autonomy. There is a complex portrayal of the institutional and ideological linkages with which society functions as a subtle but powerful network of disciplinary practices, ensuring that individuals remain docile and obedient without the necessity of the harsh physical punishments of earlier eras. And there are the exemplary acts of resistance to disciplinary power which—when they occur at moments in time and space when individual subjects come together to form oppositional forces—may produce oppositional forces to regimes of power.

[25]   In fact, in both narratives, the heroines emerge as freer, more autonomous women, no longer willing to submit to sexist forms of control and abuse. Francine Hughes goes on to obtain a secretarial degree so that she can become financially independent and support her children. And Anna Dunne’s marriage is significantly transformed, as her husband ultimately joins her on the witness stand and dramatically breaks with and condemns his family’s patriarchal practices and beliefs. The reformist political implications of these movies are thus made dramatically clear.

[26]   But there are limits to what the resistant acts of such women, and the reforms they may help to bring about, can ever really do for women, in liberal television narratives no less than in liberal democratic societies generally. Here too the movies seem to echo an interestingly Foucaultian view of the nature and limits of liberal resistance and reform. For in Foucault’s view of liberal democratic societies, there is no possibility of total liberation, only resistance. And, as Wendy Brown notes, Foucaultian resistance “is at best politically rebellious, at worst politically amorphous,” for it is always “figured by and within rather than externally to the regimes of power it contests.” Thus, it must always “stand against, not for;[for] it is reaction to domination;” an act to which subjects are in a sense driven under certain conditions in which power relations configure themselves in certain patterns.” Resistance thus is “neutral in regard to possible political direction,” according to Brown. “It is the practice of freedom,” but not its actual end result. For, as Foucault once said in an interview Brown quotes, “I do not think it is possible to say that one thing is of the order of ‘liberation’ and another . . . of oppression.”. . . While “there always remains the possibilities of resistance, disobedience, and oppositional groupings, . . . I do not think there is anything that is functionally . . . absolutely liberating.” In other words, reforms of various kinds may occur—or not—within the complex, always localized, power struggles of everyday life. But what Brown calls true “emancipation”— the power to act for oneself, and determine one’s own social structures and values—is proscribed for Foucault, as it is in even the best of commercial television texts(461-463).

[27]   Silent Witness and The Burning Bed represent the best that liberal, but still hegemonically limited, commercial media can offer progressive forces such as feminism, no matter how influential such forces may become, or how much impact their ideas and values may have on media producers. For, like the other liberal democratic institutions Foucault analyzes, the media are inherently and inexorably inscribed within regimes of power which they may, at exemplary moments, resist, but never escape. And so, for reasons inherent in the hegemonic nature of mainstream media, resistance can only lead to a kind of reform—in production norms as well generic conventions— which does not truly upset, much less overthrow, dominant regimes of power. In both films, for example, there are male characters who support the women and thus represent an amended but not wholly transformed system of gendered power relations.

[28]   In The Burning Bed, most obviously, while Hughes does indeed speak for herself, it is within the larger context of a legal system whose reformist limits are represented by the male lawyer who, during the trial itself, speaks for Hughes, even as he makes it possible for her to speak for herself. And in Silent Witnessthere is a similarly accomodationist ending which preserves, while amending, hegemonic norms, even as it allows for effective resistance and possible reform as Anna’s husband joins her as a witness for the prosecution, amplifying and strengthening her own voice and “truth” with his corroborating male voice and version of events. A new definition of marriage emerges in which power relations and ideological assumptions are amended and shifted, but, again, there is no suggestion that women need ask for more than that—from men in general, and the still largely male-run media or legal system in particular.

[29]   Nonetheless, with all its limitations, generically and ideologically, these two movies—and many others like them made during the early 1980s—did represent a significant victory for feminist forces which should not be underestimated. For it was no small thing to push the envelope of hegemonic gender norms, steadfastly in place for centuries, so far as to not only allow women to be heard and recognized in the public arena of the courtroom; but also to put forth a serious critique of American institutions which actually did lead to significant reform, if not what Brown would define as freedom.. It is only when we look at what has happened to representations of gender violence, as portrayed in 1990s versions of televised courtroom drama, that we can see how advanced these liberal reformist films, and their ideas about gender violence, actually were, compared to current representations and assumptions.

Back to the Future: From Foucault to Durkheim

[30]   In the years since The Burning Bed and Silent Witness were produced, American politics generally took a radical swing to the right. Democrats and Republicans alike began taking increasingly conservative positions on any number of issues affecting women, from welfare reform to so-called ‘family values.’ But in no area of public policy was this rightward drift more dramatic than in the area of criminal justice. By 1997, prison construction and management had become the single greatest growth industry in the nation. The imposition of more harsh and punitive measures—three strike laws for simple, often nonviolent offenses; harsh mandatory sentences; the rise in legalization and enforcement of the death penalty; the trying of youths, often in single digit age groups, in adult courts; highway chain gangs; punishments involving public identification and shaming of offenders and ex-offenders; and so on—defined an increasingly repressive, crime-fearing and punishment-loving society. And, while it is not widely known or commented upon, women, especially poor women and women of color, became the fastest growing segment of the ever-growing prison population, even as prisons became more and more brutal and repressive, and the rights and privileges of prisoners—to education and legal assistance for example—were gradually but dramatically curtailed. (For a thorough survey of the state of crime and crime control in the late 1990s see Steven Donziger, ed, The Real War on Crime: The Report of the National Criminal Justice Commission, (New York: HarperPerennial, 1996). Donziger documents the actual incarceration rates of various age, race and gender groups as well as the actual figures on crime rates which are not easily found in a credible form. He also documents the various penalties and even many of the atrocities committed against defendants and prisoners, and the various legal initiatives pending or passed which will alter criminal trial procedures as well as arrest and prison procedures in ways which give prosecutors and police officers more advantage and defendants and suspects less. In the process of writing this essay a number of new bills, exacerbating this ominous trend, were being discussed as well. A federal bill to try 13 year olds as adults, for example, and induce states, through the offer of large block grants, to follow suit, in cases of violent crime and “serious” drug offense is only one of many such trend-setting ideas looked upon more and more favorably by Democrats and Republicans alike.)

[31]   It is important to see the shifts in legal policy toward, and media representation of, gender violence in this broad political context, for it highlights what, I would argue, is most problematic about the kinds of “reforms” the political and juridical institutions of the 1990s have made in criminal justice legislation pertaining to gender violence . Certainly, new laws and institutional changes-—the Domestic Violence Act of 1996 and the rise of new domestic violence courts are typical of this trend—reflect the continuing attention to feminist issues and demands. But we may wonder, and perhaps worry, about the singling out of this issue at a time when so many others were being neglected and worse. For it raises the interesting question of how the growing public and political concern about gender violence fits with the regressive,anti-feminist tone of the period in general?. For if movies like The Burning Bed and Silence Witness reflect the influence of feminists in making both media and law attentive to this issue, the wave of “women in danger” TV movies and, far more significantly, the Court TV “Crime Stories” documentaries that have replaced them— while undeniably reflecting a continuing interest in the topic— reflect a radically different understanding of and approach to the issue which, I would argue, feminists should be cautious about embracing too gratefully.

[32]   We are living, I would say, in an increasingly post-Foucaultian, post-liberal era in which right-wing forces and ideas have increasingly replaced technologies of discipline with far more repressive and brutal forms of punishment. Indeed, I would argue that since the 1990s we have been moving away from Foucaultian notions of disciplinary technologies of control and toward a far more Durkheimian view of crime and punishment. For in Durkheim’s view, it was rituals of punishment—symbolic enactments of public rituals through which standards of morality were reinforced and upheld— which were most effective in controlling crime. For him, crime was a “type of morality . . . inscribed on society’s collective conscience.” And therefore, even in the most perfect society, there would be a need for some definition of criminal behavior—even the most trivial—in order for society to have a moral compass with which to hold together.”We should not say that an act offends the common consciousness because it is criminal,” he wrote, “but that it is criminal because it offends the common consciousness.” Thus according to Durkheim, “punishment does not serve, or else only serves secondarily, in correcting the culpable or in intimidating possible followers” It’s true function is “to maintain social cohesion intact, while maintaining all its vitality in the common conscience”(226-32).

[33]   These, I would argue, are the values and beliefs that have come to dominate public discussions of crime and public policy today. For as criminologist Alison Young has argued, we are living in a time when the markers of community unity and belonging are a sense of “shared victimization” and “a shared awareness of risk and danger”(232). In such a world the criminal is no longer the sick individual Foucault described, but the alien “other,” threatening to disrupt the fragile sense of community stability with acts of violence and plunder. It is in the context of this dramatic ideological turn that the representation of trials involving gender violence must be studied.

“Crime Stories:” From Reform to Revenge

[34]   To view a segment of “Crime Stories”—or, indeed, the gavel to gavel coverage of the actual trial from which it is derived—is to be immediately aware of its differences from the movies discussed earlier, in form, structure, setting and characterization. For while TV movies about gender violence ultimately center on courtroom processes and decisions, they do so in ways which, as I have shown, place the courtroom and the criminal justice system in the broader context of personal narratives and social institutions. But Court TV, by its very nature, locates its drama far more narrowly within the arena of the legal process itself, with only the briefest and most limited view or discussion of the broader context within which the alleged criminal act occurred. There are, for example, brief “talking head” interviews with attorneys, jurors and other interested parties, but they focus almost exclusively on opinions about the process itself, and tend—by the nature of what Court TV is—to present “both sides” with no particular slant in either direction. In fact, if there is a bias to the series, and to Court TV as a whole, it is—as the justices who allowed the trials to be televised originally hoped— toward the validity and credibility of the system itself. Women are certainly allowed to speak in these trials, but their voices and experiences are heard only within the context of legal discourse and process. And such discourse and process is primarily constructed to reflect the interests of ( male) power and authority, for which the concerns of women figure only if and when they serve those interests. The idea is to show that the system works, after all, and not, certainly, that it is in need of reform.

[35]   One sees this most clearly in the narrative points of view of the two forms. In the TV movies, it was the woman and her representatives whose point of view was central. But on Court TV, although the jury cannot be shown on screen, it is this group of twelve citizens, the defendant’s “peers,” who— along with the judge— are the representatives of Durkheim’s “collective conscience,” empowered with the awesome authority to judge and punish. Henry Louis Gates captures the significance of this when he describes the jury as “a symbol of popular and local sovereignty” empowered with the authority to “confer legitimacy upon the most invasive thing a State can do: strip a person of life, liberty or property”(11). And on Court TV, in general, it is this sense of the awesome—and always legitimate— authority of the state and its representatives that most solidly grounds the representations of crime and punishment. The system itself cannot be questioned or critiqued, as in docudramas about social issues. For just as in Foucault’s reading of earlier eras it was the sovereign body of the king, as symbolized in the public rituals of judgment and punishment, that was unassailable in its authority, on Court TV—an equally public arena of symbolic ritual— it is the jury.

[36]   This displacement of the contesting narratives of “truth” presented by opposing attorneys with the sovereign authority of judge and jury, creates a dramatic arena in which the questions to be asked and answered give a very different spin to the implications of a woman’s power to have a voice and have her experiences heard and credited. And this is nowhere more clearly demonstrated than in the “Crime Stories” series. Briefly, the structure of the series is as follows. The commentator introduces the story and lays out the issues and questions which must be answered and resolved by hour’s end. The basic structure of a criminal trial is then followed: opening arguments; prosecutor’s case and the cross-examination of her or his witnesses; defense case and cross; closing arguments; verdict; and, in some cases, the penalty phase in which the sentence is determined. Interspersed in this documentary footage are, perhaps, a few shots of the crime site or other relevant background sites or objects, the interviews with participants, and the ongoing comments of the narrator who—throughout the hour—points the viewer toward the ultimate moment of closure: the verdict.

[37]   It is important to note that a trial takes place not only after the entire background stories and situations which led to the crime have occurred, but also after the various back room negotiations and motions among attorneys, defendants and judges have taken place. Thus we get an extremely truncated version of “the truth,” no matter who is “swearing” to tell it. There is none of the social, cultural or economic context we get in serious TV movies, in which both victim and accused are presented at a level of complexity and depth which allows the conditions which led to the act to be understood. For even the rapists and wife-batterers of our docudramas were seen as products of a sexist social environment which at once empowered and authorized their acts, even at it often deprived them, because of class or race positions, of other more important forms of social power.

[38]   But “Crime Stories,” and Court TV generally, like the current legal system itself, exists at a time in history when the reforms —at least the most dramatic legal reforms—demanded by early feminists have already been largely acknowledged. A victim’s right to speak, her right to have her abuse taken seriously no matter what her class or lifestyle, and her right to have the injuries done to her recognized and punished as crimes are—at least in principle if not always in practice—now inscribed in law. Thus the portrayal of trials involving gender violence, in which “justice” is seen to be achieved—at a time when law and order, stiff prison terms and conditions, and victims’ rights to retribution and revenge, have become rallying cries for right wing forces—raise complicated issues for feminists. For while, in all these trials, the attorneys certainly and explicitly use feminist arguments to make their cases, the demands they, and their clients, make on the larger society are far from what feminist political theorists like Wendy Brown would define as emancipatory.

Feminist Justice as Seen on TV

[39]   To compare the TV movies of the early 1980s with the televised trials of the 1990s, we might look briefly at a typical “Crime Stories” segment dealing with domestic violence. In “Ohio vs. Redding,” a woman and her teen-age son are on trial for murdering the man they claim was an abusive husband and father for many years. The segment is entitled “Death of a Father: A Battered Woman Defense” and begins with the commentator giving harrowing statistics about the incidence of domestic abuse in America. Thus, the “issue” of domestic violence is made clear from the start. Nonetheless, there is something odd about thewayin which the issue is incorporated into the narrative of judgment and punishment. For it is always employed, by defense or prosecution attorneys, in the context of a system of justice in which evidence, witness testimony and legal precedent are dominant, and social or political issues subservient. Indeed, there is, I would argue, something uncomfortably opportunistic about the way in which the new acknowledgment of rape and domestic violence as criminal offenses is employed by most attorneys. For what is at issue is invariably “Who did what to whom and why?” And attorneys only bring in feminist phrases and assumptions when and if it suits their purposes: to persuade a jury to convict or acquit.

[40]   It is also worth mentioning that in both these “Crime Stories” the verdict that the jury reaches is “guilty.” But while in “Ohio vs, Redding,” it is the abused woman and child who go to prison, in “Georgia vs. Redding,” it is the alleged rapist. Thus, unlike the TV movies discussed, in which an acquittal for Francine Hughes is a victory; while it is a conviction for the rapists in Silent Witness that brings feminist justice; in “Crime Stories,” based on actual trials, feminist rhetoric almost never wins out when the abused woman is a defendant and almost always wins out when, and only when, the woman is the accusing “victim.” (And it should also be at least mentioned that in both these cases, as is again typical in actual trials, those who are convicted and incarcerated are black, while in “Georgia vs. Redding” both victims are white.) For these reasons, the likelihood that feminists will have success in jury trials is largely—indeed almost invariably—dependent upon their positions in court as victims, appealing to the (male-controlled) state for the justice they cannot achieve through other means.

[41]   A far more interesting example of the problems which arise in trying cases of gender violence within the confines of the criminal justice system is the case of “Georgia vs. Redding,” a rape case in which feminist voices, ideas and demands for justice are heard as loudly and clearly as any so far televised, and with the greatest emotional and legal impact. In this case, the two victims do indeed receive “justice,” and weep tears of joy at the successful conviction of their alleged attacker. The case involves the rapes of two women, blocks apart, within a period of two months, who join forces to bring their attacker to justice; a process which takes seven years of passionate, continuous agitation and litigation on their parts.

[42]   Again, the segment begins with horrifying statistics about rape in America. And what follows, as in “Ohio vs. Redding,” is a series of talking head interviews with the abused women in which horrors are described and copious tears of anguish shed at the painful memories. But in this case, the women are far more articulate and compelling for reasons which, again, reveal some of the contradictions of feminist involvement with the criminal justice system as an ally and protector. Kathy Winkler, the most articulate of the two, and the one whose words are given most air time, is a white feminist professor of anthropology whose ordeal lasted 31/2 hours, during which she tried to reason and plead with her attacker to no avail. And Hettie Bennett, the other victim, is a working class single mother who also tells a horrifying tale of being raped within earshot of her sleeping daughter for an unendurably long time. The defendant, a black man, sits silently throughout the trial and has only his mother to beg for his life after he is convicted. “He ain’t no saint,” she tells the court sadly, “but he is not capable of the things he was accused of.”

[43]   As in the previous trial, the better part of the hour is taken up with legal details, mostly involving DNA testing and the inability of the two women to positively identify Redding as the perpetrator. As it turns out, the hours of scientific testimony on DNA— which, as viewers of the O.J. Simpson case will remember, can easily put a jury to sleep or leave them totally confused—is inconclusive. But the passionate testimony of the women— especially Winkler who cries “How can they believe science over a woman’s word??” in one of her talking head interviews—finally wins out and the “reasonable doubt” that is Redding’s only hope is overridden by the jurors’ belief in the women’s stories. “I feel like I’ve died and gone to heaven,” says Bennett when the guilty verdict comes in and the women embrace and cry.

Mae West, Feminism and the Not-So-Liberal State

[44]   Here then we have a case in which virtually every demand feminists have made upon the legal system for reform of rape law has been met. Women are heard, their pain and anguish displayed as “legal events” and their demands for justice granted. Indeed, the trial is particularly moving because—as in Silent Witness—we have a deep bonding between women of very different stations in life around the issue of rape. Their alleged attacker is put away for life—indeed he is given five consecutive life sentences with no chance of parole and will never again see the light of day outside the prison gates. But what, in the end, have women won through this admittedly moving spectacle of judgment and punishment? Have they achieved any significant reform of the sexist institutions which are so clearly addressed in the TV movies discussed? Have they in any way contributed to the kind of emancipation and control over the conditions of their lives that Brown defines as true freedom? Have they, indeed, freed themselves in any sense from the disciplinary control of the masculinist state?

[45]   I would argue that what they have won is a moral victory of a particularly Durkheimian kind, since they have managed to forcefully dramatize and reinforce—in the public arena of the courtroom, and then the television screen— the idea that gender violence is a moral outrage against the collective conscience of the community, and thus a “crime” to be publicly condemned and punished. But on another level, they have allowed themselves to be defined, by the state, as victims in need of protection and rescue. Moreover, as Alison Young has rightly noted, they have joined a community in which belonging and membership is based on a sense of “shared victimization” and “shared awareness of risk and danger.” That in fact is the very basis of their feminist bonding. But perhaps most troubling are the political implications of the turn to the courtroom for redress of feminist grievances. For, as Brown suggests, there is something “profoundly undemocratic. . . in transferring from the relatively accessible sphere of popular contestation to the highly restricted sphere of juridical authority the project of representing politicized identity and adjudicating its . . . demands”(58).

[46]   Thus, I would argue, in taking up the feminist demand for redress of gender violence, the state has gained more fromwomen than we have gained from it. For unless you are of the mind that vengeance and punishment is a “good enough”ending to women’s harrowing stories of rape and battery, and that moral victory is a “good enough” remedy for sexist oppression, there is simply too much that is still ignored, denied and distorted in this kind of “happy ending,” for women and men alike. For if we treat sexual offenders and batterers as merely and essentially “evil,” and women as in need of nothing more than protection or revenge by the state, where have our demands for ending sexism, much less for the freedom to determine the terms by which our lives, in general, are lived, gone?

[47]   In The Burning Bed and Silent Witness, whatever their flaws and limits, the idea was that men too were social products of a sexist society which, once restructured, might well produce very different individuals. Indeed, at one point, the idea that Mickey Hughes might need therapy is even suggested. “Mickey needs help,” Francine pleads to her in-laws, and his mother even agrees that “He ain’t been right” for a while. But when the father, in predictably patriarchal fashion, vows that “No son of mine is going to no mental hospital,” and actually leaves home for several weeks, such a “solution” is never again mentioned. Nonetheless, it is raised within the text as a possible avenue of relief in a way which rarely occurs in “Crime Stories,” since issues of treatment and rehabilitation are beyond the scope of what is usually at issue in a trial. Indeed, in both examples given, the men are presented as opaque, mute, socially decontextualized presences whose only identification is in terms of their “alleged” acts of violence. Thus the essentialist notion of male violence as an inherent, defining characteristic is, if not explicit, dramatically implicit. And we women are left to deal with our legitimate fears in no way except through the processes of judgment and extreme, preferably permanent, punishment. Get them off the streets, is the cry of the day. And so we do, in such large numbers in the black community that family and community dysfunction—not to mention the burden on taxpayers—has grown to alarming levels.

[48]   The politics of victimization is thus, I would argue, in many ways the antithesis of the politics of feminist emancipation. For, as Lauren Berlant has argued, such a “politics of sentimentality”—to use her term—depends upon “revelations of trauma, incitements to rescue, the reprivatization of victims as the ground of hope,” and the assumption that “the nation’s duty [is] to eradicate . . . painful feelings,” (329) rather than end sexism itself. Indeed, far from suggesting that women should be free to “play house with world,” as Simone de Beauvoir once put it, and remold it in our own interests, such a politics tacitly accepts the legitimacy and authority of the state and relies upon it for protection and redress of suffering. But, as Brown argues, “Whether one is dealing with the state, the Mafia, pimps, police, or husbands, the heavy price of institutionalized protection is always a measure of dependence and agreement to abide by the protector’s rules.” For ” institutionalized police protection necessarily entails surrendering individual and collective power to legislate and adjudicate for ourselves in exchange for external guarantees of physical security.” But there is a cruel irony in such a bargain. For “to be protected by the very power one fears, perpetuates dependence and powerlessness”(169-173).

[49]   Of course this is an old feminist debate, or schism, perhaps the first serious sign that the apparent utopian harmony of second wave feminist sisterhood might, over time, become an arena of struggle over political and ideological differences. In this case, as Brown notes in an analysis of Catherine McKinnon’s feminist theories, the issue might be posed in terms of freedom versus security. For McKinnon and her followers— as Brown reads them—believe that in a sexist society “women need protection more than freedom” (21).

[50]   These are honest disagreements and important debates among feminists. However, what I am suggesting is that the debate takes on a very different meaning at the turn of the century than it did when it first arose in the 1970s. For we are living in a time—far different from the 1970s—in which the political cry of the day, from Democrats and Republicans alike, is for stiffer penalties for lesser crimes, more prisons and prisoners generally(the fastest growing segment of whom are women), more executions for more and more legal infringements previously considered lesser crimes, incarceration of younger and younger offenders in adult prisons and so on. The state, in this context, cannot be seen—as theorists such as McKinnon tend to do—as a friend and protector, much less emancipator, of women. On the contrary, any alliance with the powers that be must be seriously interrogated. For in a state dedicated to incarcerating more and more people—particularly those who fall into the categories of the powerless— the poor, the sexually “different”; the non-white, and certainly the female—the role of victim is a necessary evil, one which serves the needs of a government intent on punishment and incapacitation (the primary rationale these days for imprisonment, according to criminologist Franklin Zimring) of more and more of us. And for this reason it is increasingly dangerous for all progressive people, especially feminists, to fall into the trap of playing this role, no matter how victimized we may in fact have been by a male abuser. For, in the context of current political and ideological trends, we need to think about the larger implications, for all Americans, of giving up the early struggle of left-leaning feminists for true emancipation in favor of a retreat into the “protective” arms of a state whose policies are increasingly driven by essentialist notions of evil; the valorization of victimhood and victimization; and the desire to see—literally see—punishment administered as a form of vengeance against the alien “Other.” For women too—and this is as elementary as Feminism 101—are and will always be, ourselves, the “Other” in a sexist state. And for that reason, we can never allow ourselves to feel too safe under its “protective” wings.


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