The performance of gender as reflected in American evidence rules

Language, power, and the legal construction of liability

Abstract

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.