Vol. 4 No. 2 (February, 1994) pp. 17-18
REPRODUCING RAPE: DOMINATION THROUGH TALK IN THE COURTROOM by
Gregory M. Matoesian. Chicago: University of Chicago Press. 1993.
264 pp. Cloth $40.00. Paper $15.95.
Reviewed by Jennifer L. Pierce, Department of Sociology,
University of Minnesota
In this important new book, Gregory Matoesian adopts a novel
methodological approach to show that the violation of rape
victims is reproduced in the courtroom during trial. Using tape
recorded transcripts from actual trials, Matoesian analyzes the
language defense attorneys use in cross-examination as well as
their modes for interpreting and classifying rape. He argues that
cross-examination recasts the act of sexual violation into a
seemingly normal form of consensual sex. Through such a
transformation, women's voices and experiences are silenced
thereby reproducing the dominance of the patriarchal discourse on
sex and sexuality.
Matoesian views courtroom talk about rape as a serious social
problem as well as an empirical site for his theoretical
interests: to "anchor organizational talk squarely in the
midst of social structure and power, and to situate that talk
within contemporary sociological theory: the theory of
structuration" (p. 3). Drawing from Giddens' (1984) theory
of structuration as well as feminist theories on sexuality and
domination (MacKinnon 1989), Matoesian unmasks the hidden
structures of power which play out in the micro-order of
courtroom talk between defense attorneys and rape victims.
The greatest strength of the book lies in Matoesian's meticulous
analysis of courtroom talk. While the notion that women are raped
again through the process of a trial is not a new one,
Matoesian's methodological approach is. Utilizing a
conversational analysis approach (Sacks 1984; Zimmerman 1988), he
analyzes 2,500 pages of court transcripts from three separate
rape trials. Some of his methods of analysis include: examining
the rules in "turn taking," misunderstandings,
mishearing, objection sequences, silences and the syntax in
question-answer sequences. By Matoesian's estimate, he spent 50
to 60 hours of careful analysis for every hour of transcript.
While the use of conversational analysis is the strength of the
book, this exclusive methodological focus is also a weakness. By
focusing only on language, Matoesian neglects many other
important non-verbal, visual elements of the courtroom. All the
theatrical elements of courtroom drama and performance -- the
calculated gesture, the strategically raised eyebrow, posture,
dress and so on -- are missing. To his credit, Matoesian
anticipates these criticisms arguing that to go "beyond the
data of talk would lose the subtle density of conversational
behavior" (pp. 65-66). Further, he suggests it would create
an "unmanageable" proportion of data to analyze.
Matoesian's argument about losing the subtle density of the data
is not entirely convincing. From my own research on the behavior
of trial lawyers in the courtroom, the visual and non- verbal
elements of trial proceedings would only buttress his argument
about the purposes of cross-examination (Pierce 1991). To be
fair, given the amount of data Matoesian collected, it would be
unreasonable to expect more. Nevertheless, at the very least, a
brief discussion of the American adversarial system, the purposes
of direct and cross-examination and a review of other studies on
the techniques used by trial lawyers would have been useful. This
kind of information would have been helpful in locating the micro
order of courtroom talk in its social and historical context.
Matoesian's inattention to the larger legal context and to
cross-examination in particular creates a related problem. Many
of the novel elements Matoesian claims to "discover" in
the talk of cross-examination such as the way leading questions
are used to control witnesses are not surprising. According to
Mauet's (1980) FUNDAMENTALS OF TRIAL TECHNIQUE, for example, the
very purpose of a leading question is to control the witness by
suggesting a particular answer in the question itself. Then, what
exactly has Matoesian discovered? The defense attorney's intent
matches the way he uses courtroom talk? This does not strike me
as a particularly surprising
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finding. Moreover, because Matoesian does not provide general
background about our adversarial system, it is not clear whether
he thinks leading questions are features unique to rape trials --
or whether they take on a particular form in rape trials. Again,
some attention to the adversarial system in general and rape
trials in particular would have helped to clarify this problem.
Finally, Matoesian's claim that no researcher has treated
courtroom talk as a system of domination is inaccurate (p. 20).
While his book may be the first to use conversational analysis to
study courtroom talk in rape trials, it is not the first to look
at how legal ideologies restructure conflicts involving victims.
A number of feminist scholars have made similar arguments about
how the structure of trials on sexual assault, sex discrimination
and immigration reproduce victimization (Bumiller 1988; Chancer
1987; Schulz 1990). In fact, Kristin Bumiller's (1988) important
book THE CIVIL RIGHTS SOCIETY: THE SOCIAL CONSTRUCTION OF VICTIMS
explores all these issues. A more careful reading of the relevant
literature would show that Matoesian's findings support previous
research on these issues.
In sum, a more careful contextualization of the micro order of
courtroom talk in rape trials within our contemporary legal
system would have improved Matoesian's overall analysis.
Moreover, attention needs to be given to the work of feminist
scholars, especially that of Kristin Bumiller, which address many
of the questions he raises. Despite these criticisms, however,
Matoesian does make an important empirical contribution by using
conversational analysis to study the domination of rape victims
through courtroom talk.
REFERENCES
Bumiller, Kristin. 1988. THE CIVIL RIGHTS SOCIETY: THE SOCIAL
CONSTRUCTION OF VICTIMS. Baltimore: Johns Hopkins University
Press.
Chancer, Lyn. 1987. "New Bedford Massachusetts, March 6,
1983 - March 22, 1984: The `Before and After' of a Group
Rape," GENDER & SOCIETY vol. 1, no. 3 (September).
Giddens, Anthony. 1984. THE CONSTITUTION OF SOCIETY. Berkeley:
University of California Press.
MacKinnon, Catherine. 1989. TOWARD A FEMINIST THEORY OF THE
STATE. Cambridge: Harvard University Press.
Mauet, Thomas. 1980. FUNDAMENTALS OF TRIAL TECHNIQUE. Boston:
Little Brown.
Pierce, Jennifer. 1991. GENDER, LEGAL WORKERS AND EMOTIONAL
LABOR: WOMEN AND MEN AT WORK IN CORPORATE LAW FIRMS. PhD
dissertation. Department of Sociology: University of California,
Berkeley. Sacks, H. 1984. "Notes on Methodology." In J.
Atkinson and J. Heritage (eds.), STRUCTURES OF SOCIAL ACTION. New
York: Cambridge University press.
Schulz, Vicki. 1990. "Telling Stories About Women and Work:
Judicial Interpretations of Sex Segregation in the Workplace in
Title VII Cases Rasing the Lack of Interest Argument,"
HARVARD LAW REVIEW vol. 103.
Zimmerman, Don. 1988. "On Conversation: The Conversation
Analytic Perspective." In J. Anderson (ed.), COMMUNICATION
YEARBOOK, vol. 11. Beverly Hills: Sage.
Copyright 1994