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Narrating Domestic Violence: Producing the “Truth' of Violence in 19th- and 20th-Century Hawaiian Courts

Published online by Cambridge University Press:  27 December 2018

Sally Engle Merry
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Abstract

Stories told by and about men who batter women in the courts of Hawai in the mid-19th century and in the late 20th century are strikingly similar. Courts, then as now, accept some justifications for battering and reject others, in the process constructing the boundary between legitimate and illegitimate violence. Throughout this period, the legal system claimed to focus only on the violent act itself, not the emotional or personal violation. The law interprets the violence as brute fact, knowable without regard to the social relationship or system of cultural meanings within which it occurs. There are persistent contradictions between the law's construction of domestic violence as an unambiguous physical act and litigants' and judges' views that these violent acts are moments within the social dynamics of gendered power relations. At the same time, there are recurrent tensions between the efforts of the legal system to portray violent acts against women in terms of rational categories of action and, in contrast, the experience of violence and the meanings within which it occurs that are often opaque to such sense-making, defiant of a simple means-ends calculus.

Type
Symposium: Women, Law, and Violence
Information
Law & Social Inquiry , Volume 19 , Issue 4 , Fall 1994 , pp. 967 - 993
Copyright
Copyright © American Bar Foundation, 1994 

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References

1 Scheppele points out that usually in cases of sexualized violence, physical evidence is privileged over stories. Kim Lane Scheppele, “Just the Facts, Ma'am: Sexualized Violence, Evidentiary Habits, and the Revision of Truth,” 37 N.Y.L. Sch. L. Rev. 123, 157 (1992). Yet, in cases of rape, the severity of the trauma depends on the woman's violation of her sense of safety and the accompanying emotional distress as well as on the sexual assault itself (id. at 139). Thus, the physical act as a measure of the injury falls short for rape victims as it does for victims of domestic violence.Google Scholar

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3 But the physicality of violence is still important in this program. In the midst of one discussion, for example, when one of the men claimed that his violence against his wife was minimal, he was confronted with a photograph of his wife and her injuries. The men in the room were jolted. Other men anxiously asked whether the program staff had pictures of their wives as well. Thus, the physicality of violence erupts even as the batterers strive to contain it in cultural packages of minimizing and justifying: “It was just a slap.”“I just pushed her around a little bit.” Or “she was playing around with another man.” It is precisely such packaging of the physical injury in the cultural justification that the violence control program, inspired by feminist theory, strives to disrupt. It does so by asserting that no physical act is permissible, regardless of the woman's behavior. The physical act needs to be understood on its own terms. Yet this program also seeks to expand the definition of violence to include, in addition to physical acts, a range of intimidating social behaviors.Google Scholar

4 Of the research assistants, Marilyn Brown worked in Hilo and Honolulu for a total of seven months; Joy Adapon spent two months in Hilo. Two other research assistants, Tami Miller and Linda Andres, worked several weeks over the spring and summer 1992. Together we observed 33 sessions of the violence control program over a year, observed domestic violence proceedings at the Family Court and District Court (19 weekly sessions), and interviewed 15 men and 15 women about their reactions to the court. We also talked to a wide variety of people in the community and the courts, including the leaders of the movement to deal with domestic violence. We coded demographic information on 600 people, men and women, who were referred by the court to the violence control program or the women's support groups or who chose to seek out this kind of help. In summer 1994, Madelaine Adel-man spent two months following the legal management of domestic violence in the police department and prosecutor's office, and Erin Campbell recorded the records of all domestic violence and desertion cases in the Hilo court minute books for the 19th century. Esther Mookini contributed greatly by her translations of 19th-century Hawaiian court proceedings.Google Scholar

5 Considerable evidence suggests that in American courts, for example, acts of violence between people who know one another are treated more leniently than acts of violence between strangers. Barbara E. Smith, Non-Stranger Violence: The Criminal Court's Response (Washington, D.C.: National Institute of Justice, U.S. Department of Justice, 1983); Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans (Chicago: Univ. of Chicago Press, 1990). Moreover, the boundaries of acceptable violence change dramatically over time, as Foucault argued in his portrayal of the public spectacles of violence in the 18th century which gradually moved into secret places in the 19th and 20th centuries. Michel Foucault, Discipline and Punish: Birth of the Prison, trans. A. Sheridan (New York: Vintage, 1979). In 18th-century Massachusetts, for example, periodic beatings were considered good for the development of the character of young apprentices (Bernard Farber, Guardians of Virtue: Salem Families in 1800 (New York: Basic Books, 1972)), in sharp contrast with current ideas in the United States about the appropriateness of hitting children as a form of discipline.Google Scholar

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Cross-cultural studies of child abuse and wife abuse indicate significant cultural variations in what constitutes inappropriate violence. In her introduction to a volume on domestic violence in Oceania, for example, Counts notes that many Pacific societies consider a certain level of family violence normal and acceptable. Dorothy Ayers Counts, “Domestic Violence in Oceania: Introduction” (Special Issue: Domestic Violence in Oceania), 13 Pacific Stud. 1, 3 (1990). Studies of Hawai'i and Tonga indicate situations in which some forms of family violence are interpreted as appropriate parental discipline or within the prerogatives of husbands. On Hawai'i see Jill E. Korbin, “Hana 'Ino: Child Maltreatment in a Hawaiian-American Community,” 13 Pacific Stud. 7 (1990); Francis Noel Newton, “Aloha and Hostility in a Hawaiian-American Community: The Private Reality of a Public Image” (Ph.D. diss., Dept. of Anthropology, University of California at Los Angeles, 1978); on Tonga see Susan U. Philips, “Husband and Wife in Family Unity: A Tongan Magistrate's Court Case of Wife Beating” (presented at American Anthropological Association annual meetings, 1992).Google Scholar

8 It is perhaps reflective of the culturally constituted nature of domestic violence that even in writing about it, the choice of labels is problematic and deeply political: labels include family violence, spouse abuse, domestic violence, and wife battering, each with its own particular politics and meanings. Some emphasize mutuality, while others put greater stress on the victimization of women. See, e.g., Gordon, Heroes of Their Owen Lives; Kersti Yllo & Michele Bograd, Feminist Perspectives on Wife Abuse (Newbury Park, Cal: Sage Publications, 1988) (“Yllo & Bograd, Feminist Perspectives”); Richard J. Gelles, Fondly Violence (Beverly Hills, Cal.: Sage Publications, 1979); id. The Violent Home: A Study of Physical Aggression between Husbands and Wives (Beverly Hills, Cal: Sage Publications, 1972); Murray Arnold Straus, Richard J. Gelles, & Suzanne K. Steinmetz, Behind Closed Doors: Violence in the American Family (Garden City, N.Y.: Anchor Books, 1981); Murray A. Straus & Richard J. Gelles, Physical Violence in American Families (New Brunswick, N.J.: Transaction, 1990); Susan Schechter, Women and Male Violence: The Visions and Struggles of the Battered Women's Movement (Boston: South End Press, 1982); Elizabeth Hafkin Pleck, Domestic Tyranny: The Making of Social Policy against Family Violence from Colonial Times to the Present (New York: Oxford University Press, 1987); Martha R. Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation,” 90 Mich. L. Rev. 1 (1991); Dobash & Dobash, Violence against Wives. Yet, much of the literature on domestic violence does not take as problematic what constitutes a violent act itself.Google Scholar

9 Judith Butler, Bodies That Matter: On the Discursive Limits of “Sex” (New York: Rout-ledge, 1993), argues that even apparently physical phenomena such as sex are culturally constructed.Google Scholar

10 For example, Kristin Bumiller's fascinating account of the cultural construction of rape through her analysis of the New Bedford rape trial demonstrates the complex interpretive processes by which the physical act of sexual contact acquires cultural meaning in the courtroom. Kristin Bumiller, “Fallen Angels: The Representation of Violence against Women in Legal Culture,” in Martha Albertson Fineman & Nancy Sweet Thomadsen, eds. At the Boundaries of Law: Feminism and Legal Theory (New York: Routledge, 1991). As she points out, the interpretation of the incident as rape in legal discourse depended on the construction of the victim as conforming to a particular image of feminine propriety. It is the centrality of the concept of consent that puts the victim on trial. See also Liz Kelly, “How Women Define Their Expectations of Violence,” in Illo & Bogard, Feminist Perspectives. Google Scholar

11 See generally Gavan Daws, Shoal of Time: A History of die Hawaiian Islands (New York: Macmillan, 1968).Google Scholar

12 David Stannard, Before the Horror (Honolulu: University of Hawaii Press, 1989).Google Scholar

13 Meiric K. Dutton, William L. Lee: His Address at the Opening of the First Term of the Superior Court Held in the New Courthouse, Honolulu, July 5, 1852 (Honolulu: Loomis House Press—Hale Pai o Lumiki, 1953).Google Scholar

14 Marion Kelly, “Land Tenure in Hawaii,” 7 Amerasia BuU. 57 (1980).CrossRefGoogle Scholar

15 Peggy Kai, “Chinese Settlers in the Village of Hilo before 1852,” 8 Haviaiian J. Hist. 39 (1974).Google Scholar

16 The First Lauis of the Hawaiian Islands, issued from time to time, were compiled and publUhed in 1842 (“First Law”). Google Scholar

I am grateful to Harry Ball for his help in locating materials on Hawaiian law during the monarchy period and for his generosity in sharing his enormous knowledge of the subject with me.Google Scholar

17 First Laws, 1842 at 49.Google Scholar

18 Id.: Google Scholar

If a husband and his wife quarrel and one assault [sic] or beat the other, or do anything else by which a wound is inflicted, they shall then be brought to trial and punished according to the aggravation of the offense, but not more than others who commit assaults. If they quarrel again after the trial, the punishment shall be doubled, and shall continue to be doubled for each new offense, even to the farthest extent. But if the judges perceive that the woman is in special danger on account of the frequent assaults of her husband, it shall be proper to confine that man in irons, at the discretion of the judges, proportioned to the danger of the wife.Google Scholar

19 A separate law forbids quarreling and striking in general, apportioning the fine to the severity of the wound, but also differentiating between injuries attendant on quarreling from those in which one person waylays another and assaults him, emphasizing the significance of deliberation and intent. Id. at 95.Google Scholar

20 Id., 1835, at 8; incorporated in 1842, at 106–7.Google Scholar

21 In 1835 (at 5), the law specified a $15 fine for each person in an adulterous couple. In 1842 (at 97), the adulterous person was fined $30 or, if he or she failed to pay, sent to prison at hard labor for eight months.Google Scholar

22 “An assault is a malicious attempt forcibly to do a corporal injury to another without authority or justification by law” (1897 Penal Laws ch. 6, sec. 55, at 67; also from 1869 Penal Code). A battery is “the malicious and forcible infliction of a corporal injury on another, without authority or justification by law” (1897 Penal Laws ch. 6, sec. 56, at 67; also from 1869 Penal Code).Google Scholar

23 1897 Penal Laws ch. 6, sec. 59.Google Scholar

24 Id. at sec. 60.Google Scholar

25 Id. at sec. 63.Google Scholar

26 In 1897, adultery by men was punished by a fine between $30 and $100 or by imprisonment at hard labor for a period of between 3 and 12 months, or by both; adultery for women was punished less severely: fines of $10 to $30 or prison for 2 to 4 months. Id., ch. 13, sec. 90, at 76–77.Google Scholar

27 Haw. Rev. Stat. ch. 709, sec. 1 (1973).Google Scholar

28 Haw. Rev. Stat. 709–906, sec. 1 (1983).Google Scholar

29 Haw. Rev. Stat. ch. 709–906, sec. 1 (1985).Google Scholar

30 Statute Laws 1847 at 12; Compiled Laws 1884 at 237.Google Scholar

31 These records are housed in the Hawai'i State Archives in Honolulu. The minute books have been preserved in a virtually complete set from Hilo from the 1850s until 1913, but subsequent records were destroyed. Erin Campbell and Marilyn Brown carried out the laborious work of recording.Google Scholar

32 These records have been ably translated by Esther Mookini, an experienced translator of 19th-century Hawaiian court records.Google Scholar

33 I have also examined the circuit court records for Hilo from 1853 to the present, sampling case records every decade from 1905 to 1985, but wife battering cases rarely appear in the circuit court.Google Scholar

34 Another case illustrates the primacy of the physical injury in evidentiary issues. On 19 Dec. 1883 two men, both identified as Pake (Chinese), were charged with fighting and causing injury to the body of Lee Hoy. The court concludes: “I looked at the body of the Chinese. There is not a spot on his body. The defendants are discharged.”Google Scholar

35 This might reflect a difference in judges. The judge in the later period, a Hawaiian-Chinese man who wrote his court notes in Hawaiian, tended to provide fuller documentation of testimony than earlier, English-speaking judges.Google Scholar

36 Michael Taussig, Shamanism, Colonialism, and the Wild Man: A Study in Terror and Healing (Chicago: University of Chicago Press, 1987).CrossRefGoogle Scholar

37 Similarly, some scholars argue that forms of speech, such as hate speech, can be considered violence. Mari J. Matsuda, “Public Response to Racist Speech: Considering the Victim's Story,” 87 Mich. L. Rev. 2320 (1989).CrossRefGoogle Scholar

38 Scarry, Body in Pain 58–59 (cited in note 2).Google Scholar

39 Mahoney, 90 Mich. L. Rev. (cited in note 8).Google Scholar

40 Scarry, Body in Pain 38.Google Scholar

41 Id. Google Scholar

42 Id. at 58.Google Scholar

43 James Ptacek, “Why Do Men Batter Their Wives in Yllo & Bograd, Feminist Perspectives (cited in note 8), reports similar justifications.Google Scholar

44 Scarry, Body in Pain.Google Scholar

45 Sally Engle Merry, “Wife Battering and the Ambiguities of Rights Talk,”in Austin Sarat & Thomas Kearns, eds., The Paradox of Rights (Ann Arbor: Univ. of Michigan Press, 1995).Google Scholar