The Performance of Gender as Reflected in American Evidence Rules: Language, Power, and the Legal Construction of Liability

Proceedings of the International Gender and Language Association, Victoria University Press, 2009

17 Pages Posted: 12 May 2010

See all articles by Janet Ainsworth

Janet Ainsworth

Seattle University School of Law

Date Written: 2009

Abstract

The rules of evidence both govern the admissibility of evidence in trials and determine the scope of meaning to be accorded to that evidence. This article examines two American evidence rules and suggests that both rules incorporate ‘masculine’ norms of language usage. The evidence rule defining adoptive admissions provides that, when a person is confronted with an accusation of wrong-doing and fails to assertively deny it, the allegation is deemed to be admitted through silence. This rule presumes that one’s natural reaction upon an accusation would invariably be an explicit denial, such that silence can fairly be taken as a confession. Thus, this rule privileges assertive and confrontational modes of speech - all coded as ‘masculine’ - and additionally ignores the ways in which power assymmetries impact responses to accusation. Likewise, the evidence rule construing apology as an admission of fault denigrates expression of emotional solidarity - coded as ‘feminine’ - in favor of a presumption that penalizes those who say ‘sorry’ by presuming it means ‘I’m sorry I did something wrong’ rather than ‘I’m sorry that something bad has happened to you.’ Evidence rules such as these both channel and constrain the legal interpretation of language in ways that sustain linguistic ideologies of gender and gendered hierarchies of legal power.

Keywords: gendered language, rules of evidence, adoptive admissions, apology, linguistic ideology

Suggested Citation

Ainsworth, Janet, The Performance of Gender as Reflected in American Evidence Rules: Language, Power, and the Legal Construction of Liability (2009). Proceedings of the International Gender and Language Association, Victoria University Press, 2009, Available at SSRN: https://ssrn.com/abstract=1604595

Janet Ainsworth (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States

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