The performance of gender as reflected in American evidence rules

Language, power, and the legal construction of liability


  • Janet Ainsworth Seattle University School of Law



gendered language, rules of evidence, legal system, admissions, apology


The rules of evidence govern the admissibility of evidence in trials and determine the scope of meaning to be accorded to that evidence. This paper 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 be fairly taken as a confession. Thus, this rule privileges assertive and confrontational modes of speech—all coded as ‘masculine’—and ignores the ways in which power asymmetries impact responses to accusation. Likewise, the evidence rule construing apology as an admission of fault denigrates expressions 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 gendered hierarchies of legal power.

Author Biography

Janet Ainsworth, Seattle University School of Law

Janet Ainsworth is the John D. Eshelman Professor of Law at Seattle University School of Law. Her scholarship explores the application of linguistics research to legal issues and the analysis of language ideology in law. Her work has appeared in notable law reviews including the Yale Law Journal and the Cornell Law Review as well as in linguistics journals. She also has authored amicus curiae briefs addressing linguistic issues in a variety of legal contexts for cases argued in the United States Supreme Court.



How to Cite

Ainsworth, J. (2012). The performance of gender as reflected in American evidence rules: Language, power, and the legal construction of liability. Gender and Language, 6(1), 181–195.