Language, Law, and Society: Policy Implications of the Kennedy Smith Rape Trial

Abstract

In this article I examine the applied relevance of trial talk for rape shield legislation and attempts to evaluate the impact of such legal reforms. Using linguistic data from the Kennedy Smith rape trial, I argue that attempts to progressively implement rape shield have thus far failed and that research evaluating its impact has been more or less misguided because reformers and researchers have consistently failed to scrutinize empirically the interactional object to which rape shield legislation is applied: the language of evidence in testimony. Looking at the social construction of rape's legal facticity, I propose new methods of interpreting and evaluating legal reforms based on an understanding of language use and the performance of knowledge in context.

Juss-Buss [Law Bus]: A Student-run Legal Aid Clinic

“…The law is a language of symbolic power (Goodrich 1990;Bourdieu 1987) that, among other ways, manifests itself in legal labelling, legal categorisation, different negotiation discourses, and control over meaning, and as an instrument and expression of domination (Conley et al 1978;Goodrich 1990; see also Matoesian 1995;Newman 2013). Lawyers, judges, and legal aid workers, etc., should pay attention to their translation skills.…”

Rape Victim Advocates' Knowledge and Insight on Rape Laws

“…Despite rape shield laws, the following evidence remains admissible in criminal cases: evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of injury, semen or other physical evidence, evidence of specific instances of sexual behavior between the alleged victim and the accused offered to prove consent, or evidence that the exclusion of the victim's sexual history would violate the defendant's constitutional rights (Ibid.). The least restrictive rape shield law allows judges discretion to determine what information about the victim's sexual history will be admitted as evidence during the trial (Matoesian, 1995).…”

Review article

“…These laws attempt to limit the defense attorney's opportunities to subject the victim to irrelevant attacks on her character and credibility. By removing this trauma-generating factor during the trial, it was anticipated that victims would report rape more readily, that the state would be more willing to prosecute, and that juries would be more likely to convict suspected rapists (Matoesian 1995). However, although rape shield legislation may make a different ideological statement about gender relations, an analysis of the talk in rape trials reveals that men's power over women seems little changed (Matoesian 1993).…”

“…By removing this trauma-generating factor during the trial, it was anticipated that victims would report rape more readily, that the state would be more willing to prosecute, and that juries would be more likely to convict suspected rapists (Matoesian 1995). However, although rape shield legislation may make a different ideological statement about gender relations, an analysis of the talk in rape trials reveals that men's power over women seems little changed (Matoesian 1993). In Matoesian's study of rape trials (1993) two domains of power are identified: courtroom disciplinary regimes that organize participation rights and access to talk, and patriarchal domination that is enacted through moral inferential practices.…”

“…If power is defined as the capacity to enact legislation, rape shield laws and mediation practices could be seen as manifestations of power to be effected to improve the position of rape victims and of spouses seeking divorce. However, from Conley and O'Barr's review of studies of the linguistic details of everyday legal practice in rape trials and mediation sessions (based on Matoesian 1993Matoesian , 1995Garcia 1991Garcia , 1995Greatbatch and Dingwall 1989) it appears that law reforms for the protection of rape victims do not protect, and that law reforms for the empowerment of spouses empower men rather than women.…”