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Volume 22, Number 1 (1997) reprinted by permission Oklahoma City University Law Review DECEPTION AND ARTIFICE: THELMA, LOUISE, AND THE LEGAL HERMENEUTIC SHIRLEY A. WIEGAND* Thelma: "God, law is some tricky shit, isn't it?"1The law works effectively and powerfully. Especially for men. Especially for white men. Especially for white men who comprise the powerful elite in our country. The law doesn't work as well for women. Especially uneducated, working class women. Especially for women like Thelma and Louise. When Thelma concludes that the law is "some tricky shit," she is correct in more ways than one. Not only is it "tricky" in the sense that it requires sophisticated and expert maneuvering to operate effectively, but it is also "tricky" in another sense. Trick: A mean crafty procedure or practice: an artifice or stratagem designed to deceive, delude, or defraud.2It is this definition that operates throughout the controversial movie Thelma and Louise. The 1991 movie, written by Callie Khouri, sparked animated debate. Its two main characters, Thelma (played by Geena Davis) and Louise (played by Susan Sarandon), have been both vilified and mythologized. The movie begins with these two Arkansas women preparing for a two-day trip to the mountains. On the way to their destination, they stop at a country western nightclub for a drink. There, Harlan, a local cowboy, approaches them and invites Thelma to dance. He then persuades her to step outside where he attempts to seduce her and, when she resists, he becomes violent and begins to rape her. Louise rescues Thelma, but, in the process, she shoots and kills Harlan. The remainder of the movie portrays the women's escape from the law enforcement officials who pursue them as they head toward Mexico. At the end, surrounded by police officers with their backs against, not a wall, but a canyon, Thelma and Louise drive their car into the canyon, choosing death rather than capture. To some viewers, Thelma and Louise appears to be no more than the female version of Butch Cassidy and the Sundance Kid,3 a "male buddy movie."4 To others, it's meaningless, insignificant, and a "fraud," and, "if we see significance [in it] where none exists, any debate that ensues likely will be irrelevant."5 But the debate that did ensue included widely differing conclusions about the movie. Two reviewers believed it marks "a turning point" in Hollywood movies.6 Another reviewer lambasted its "resolute male-bashing": "The scene is set in the Southwest, but the real landscape is that of writer Andrea Dworkin and the most alienated radical feminists."7 But, according to this reviewer, even that does not represent the whole picture. He also alleged the movie has "an explicit fascist theme" and called it "a quite small-hearted, extremely toxic film, about as morally and intellectually screwed up as a Hollywood movie can get."8 Another reviewer suggested that it is really "a lesbian feminist movie."9 But for many women it was "'the first movie I've ever seen which told the downright truth.'"10 The movie received a huge amount of media attention and continues to spark heated debate.11 I suggest in this essay that one's view of the movie may depend upon one's view of the law and the legal system's ability to protect certain members of society. A hermeneutic approach to the movie explains the widely divergent opinions of it. If one reveres the law and this country's legal system, one will probably feel discomfort or even hostility toward the movie. But if one approaches the movie with a significant degree of cynicism about the law's equal application to women, or to other groups historically excluded from positions of power, then one might actually enjoy the movie and find that it touches him or her in an unexpectedly powerful way. Unfortunately, those in our legal system who control significant aspects of women's lives may evaluate the women's lives in the same way movie reviewers evaluated Thelma and Louise. I will first analyze the movie to outline how I believe Thelma and Louise perceive their relationship with the legal system, including their own initial ambivalence about this relationship. I demonstrate that their ambivalence turns to hostility toward the legal system and its ineffectiveness, leading them inevitably toward their fatal destination. Then, I will examine the various critiques of the film to demonstrate why some critics may have reacted with such hostility toward it. Finally, I will place the film in the context of other women's relationships with the legal system and suggest that a legal hermeneutic is essential to decisions impacting women's lives. Louise interrupts Harlan's violent rape of Thelma by pressing the gun barrel against Harlan's head. When he releases Thelma, he claims, "We's just havin' a little fun, that's all." Louise, her voice shaking, responds, "In the future, when a woman's crying like that, she isn't havin' any fun." As the women head for their car, Harlan yells, "I shoulda gone ahead and fucked her!" Louise, outraged by his sneering lack of remorse, shoots and kills him. As they flee the scene in their car, Thelma asks: Shouldn't we, uh, go to the cops? I mean, I think we ought to tell the police. Louise: Which part?Louise then becomes sick and has Thelma stop the car so she can vomit. The gun has protected them; the failure of the legal system turns them into fearful, desperate fugitives. In a cafe shortly thereafter, Louise echoes the traditional societal and, in some cases, judicial response which rape victims often face. She lashes out at Thelma, "If you weren't concerned with having so much fun, we wouldn't be here right now!" Thelma counters, "So this is all my fault, is it?" Louise then recognizes her error, and they move on. The fallacy surfaces again toward the end of the movie. As the police surround the women from all directions, Thelma panics and yells to Louise, "I know this whole thing was my fault, I know it!" Louise yells back, "Dammit, Thelma, there's one thing you should know by now; this wasn't your fault!" As they head for Mexico in an attempt to distance themselves from the law enforcement officers in pursuit, Thelma and Louise also move further and further from the law figuratively as well, demonstrating their ambivalence about the law on several occasions. Louise's announcement that things have changed--"ever'thing's changed"--signals their increasing alienation from the legal system. Louise is surely less naive than Thelma, apparently with good reason. Although the audience is spared the details, it discovers that Louise had been raped in Texas and there learned the law was not on her side. She tells Thelma to route them around Texas, regardless of the increased distance: "You shoot off a guy's head with his pants down, believe me, Texas is not the place you want to get caught. Now trust me." Although Thelma lacks experience with the law, it doesn't take her long to learn. She convinces Louise to pick up a hitchhiking cowboy, J.D. (played by Brad Pitt), who quickly wins Thelma's affection and thereby gains entrance to her hotel room. When he reveals his criminal past and offers a lesson in law-breaking (robbing convenience stores), Thelma pleads with him to elaborate. She is obviously fascinated. "You're a real live outlaw, aren't you?" she notes with delight, seemingly unaware of the fact that she and Louise have this in common with J.D.12 Her fascination with his misdeeds assists J.D. in his seduction scheme. One of the results is Thelma's first satisfying sexual experience. At this point in the movie, the women are at a crossroad. They have not completely abandoned their faith in the legal system, although they have violated one of its laws by killing Thelma's rapist. But Thelma has now begun to flirt with lawbreaking, flirting literally with convicted felon J.D. and figuratively through her fascination with his crimes. But neither woman has yet demonstrated a clear rejection of the legal system. At this point, they are uncertain of their future. What is pivotal in their decision-making is Thelma's decision to rob a store. This second crime was motivated, like the first, by the wrongful actions of one of the male characters. Louise had managed to secure $6,700 from her bank account, with the help of her male friend, Jimmy. But after J.D. steals their money, Thelma recalls J.D.'s robbery modus operandi and imitates it in staging her own robbery. A sympathetic state police detective, Hal Slocum, recognizes that neither Thelma nor Louise would have needed to commit any other crime were it not for their desperation. He tells J.D. later that J.D.'s theft forced the women into committing a crime which might (and does) cost them their lives. But after this second crime, the women react differently than they did after killing the rapist, when Thelma suggested turning to the police and Louise became ill. Now, their reaction reflects a growing alienation from the law. They begin to enjoy the idea of law-breaking. But not entirely. Their ambivalence is reflected in Louise's reminder to Thelma as they drive across the country: "Thelma, don't you litter." In addition, they continue to entertain the possibility of surrendering to the law. In one exchange, Louise cautions Thelma about telephone calls to her husband, advising Thelma that her home telephone might be tapped. Thelma, still somewhat naive, seems surprised. Louise has to explain that they may face charges of first degree murder and armed robbery. Thelma: Murder One? We can't even say it was self defense?By now, both women know that the legal system will not protect them and they demonstrate increasing alienation from it. Louise will not even admit to Thelma that she legitimately bartered a cowboy hat from an old man in return for her watch and rings. Instead, when Thelma asks her where she got the hat, she lies, "I stole it." When Louise learns that Thelma revealed their getaway plan to J.D., she advises, "We're fugitives now; let's start behaving like that." One scene which disturbed reviewers for its "gratuitous" meanness13 serves as a visual display of the women's decision to reject a legal system which has failed to protect them. A young handsome police officer stops them for speeding. As he pulls up behind them, he roars his car engine, dons his hat, straightens it, and then swaggers up to their car. This is THE LAW. But before the officer can radio information which would thwart their flight, Thelma uses the gun to stop him. She has now overcome her fear of the gun and, in fact, seems to enjoy the power which it gives her. The gun reduces the officer to a sniveling boy, crying for pity. But, although the women have crossed over the line as fugitives from the law, their actions do not reflect anger, hostility, or revenge. Just as Thelma carried off the store robbery with the utmost civility, so, too, she and Louise apologize to the officer, treating him with courtesy as they lock him in the trunk. They take care to shoot air holes in the trunk lid and toss the keys fairly close to the car. But their demeanor has now taken on a criminal character; Louise takes the officer's belt for "extra ammo." They are exhilarated by their exploit. They enjoy restraining and imprisoning "the law." After they drive away, a Rastafarian bicyclist who happens by reinforces the anti-establishment message; he assesses the situation, casually blows marijuana smoke into the trunk's air holes, and continues on his way. But Louise's ambivalence about the law reappears later when she wonders aloud why they didn't go to the police in the first place. Thelma, no longer naive and no longer ambivalent, responds: You know why. Nobody'd believe us. We'd still get in trouble; we'd still have our lives ruined. Know what else? That guy was hurtin' me and if you hadn't of come out when you did, he woulda hurt me a lot worse. And probably nothing woulda happened to him cause everybody did see me dancin' with him all night. They woulda made out like I'd asked for it. My life woulda been ruined a whole lot worse than it is now. At least now I'm having some fun. And I'm not sorry that son of a bitch is dead. I'm just sorry it was you that did it, not me.Although Thelma has now reached the point of no return, it's Louise's turn to struggle with her relationship with the legal system. Its representative, Detective Slocum, intensifies the struggle by demonstrating understanding and sympathy, and he causes Louise to question whether the system is really her enemy. Slocum tells Louise, "I know what's makin' you run; I know what happened to you in Texas." Louise freezes. She appears moved, as if considering the possibility that the law might protect or understand her. Now Thelma interrupts, cautioning her not to "blow it," by allowing the law to trace their call. But, of course, by showing sympathy, Slocum has allowed the call to be traced. Sympathy and sweet talk are just the means to destroy the women. As one agent stated earlier, "Women love that shit." Thelma worries that Louise is considering a deal with the police, although Louise assures her she is not. Perhaps Louise realizes what in fact is the truth--that Slocum is the only law enforcement official in the movie who cares about them and wants to help them. At the end, as he tries to stop federal officials from shooting, he screams to their leader, "Max, you got to do something! How many times, Max, how many times are those women going to be fucked over?" But his authority is minimal; he's told that he is no longer needed once the women are located. Louise's doubts may also be occasioned by the fact that her boyfriend, Jimmy, has demonstrated love and compassion for her. He and Detective Slocum are the only two men in the movie who share a concern for the women and some understanding for their plight. Louise, therefore, has a reason to preserve her life. Not so with Thelma. Thelma has finally grown away from husband Darryl's nasty influence and has come to the conclusion that Louise is right; "he is an asshole." Surrendering now will subject her to the abuse not only of the legal system, but also of her husband. As they continue to flee, Thelma echoes Louise's earlier comment that everything has changed. She says: "Somethin's, like, crossed over in me. I can't go back. I mean, I just couldn't live." And that is true for both of them. They have come to a new understanding about themselves and the law. They cannot turn back. In the car, Thelma asks, "Are you awake?" Louise: I guess you could call it that, my eyes are open. At the end, their eyes wide open, the women refuse to give in to the legal system which will not protect them. Louise: I'm not giving up . . . .They smile broadly, hug each other, hold hands, and drive over the edge. Although some have criticized the movie for its pessimistic ending,14 Susan Sarandon, the actress who portrays Louise, comments, "'You built this whole film to have these people not settle anymore, and then you'd toss them back into the system?'"15 She's right. They cannot go back. And yet, faced with a canyon, they cannot go forward. Such is the predicament many women find themselves in today. Unfortunately, movie reviewers generally ignore the polysemic nature of movie-watching and assume that their reaction is the only legitimate one. But the diverse backgrounds and experiences of viewers cannot help but color the lens through which they view a movie. For example, my lens is colored by the fact that I am female, that I am a lawyer, that many of my clients have been indigent, and that I have observed (and experienced) many inequities in our legal system. Other facts--that I, like many other women, have been sexually harassed; that I fear sexual assault or rape if I go out alone at night--add additional hue to my lens. Through my lens, I view Thelma and Louise as a very important movie, one which provides a rare voice for women and other non-elites in our society. Unfortunately, for too long, those who pass public judgment on the worth of such things as new movies are members of that societal class which has traditionally been most privileged. Yet, like most of those who own privilege,17 they rarely recognize or appreciate the privileged positions they occupy. "[T]he characteristics of the privileged group define the societal norm, often benefiting those in the privileged group," whose "members can rely on their privilege and avoid objecting to oppression."18 That privilege "is rarely seen by the holder of the privilege."19 Instead, "privilege appears as part of the normal fabric of daily life, not as something special."20 To slide into decisions without allowing oneself to realize that one's making any, to feel dimly that one is enjoying advantages without trying to become clearly aware of what these advantages are (and who hasn't got them), to accept mystifications because they're customary and comfortable, cooking one's mental books to congratulate oneself on traditional behavior as if it were actively moral behavior, to know that one doesn't know, to prefer not to know, to defend one's status as already knowing with half-sincere, half-selfish passion as "objectivity"--this great, fuzzy area of human ingenuity is what Jean Paul Sartre calls bad faith.21It occurs in all manner of "objective" evaluation and is often "disguised" in the language of "eternal truths."22 In the same way, the "eternal truths" which we hear from movie reviewers do not necessarily ring true for all of us who have watched the same movie. For example, one reviewer writes: Along partisan lines, men attack the movie as a malebashing feminist screed . . . . Women cheer the movie because it finally turns the tables on Hollywood, which has been too busy making movies about bimbos, prostitutes, vipers and bitches and glamourizing the misogynists who kill them to make a movie like Thelma and Louise.23And it's true. Listen to the voice of Fred Bruning, writing for Maclean's. He calls the movie meaningless and insignificant: he asserts that it is "absurd" to believe that Thelma and Louise would flee the parking lot after Louise has just killed the rapist. He also denies that the movie speaks to "us"--the viewers--and states that any debate about the movie is "irrelevant."24 To whom? And what about the many women viewers who know the movie speaks to them? Another reviewer, Terrence Rafferty, writing for the New Yorker, agrees with Bruning. He first asserts that "the act that puts the women on this reckless course is a murder." No, it's not; it's the rape. Then, he says that Louise's decision that the women will not be believed "requires a leap of faith that is far greater than the one the cops would have to make in order to believe the women's story"25 --this coming just two months after William Kennedy Smith was accused of raping his female companion and six months before he was acquitted, although several other women came forward and stated that he tried to rape them, too.26 Thelma and Louise was released in 1991--the same year in which Professor Anita Hill testified before the United States Senate Judiciary Committee. Women who saw the movie after hearing her testimony had reason to believe the movie spoke to them and held meaning for them. Their view of the legal system in this country may be at least as valid as that of movie reviewers Bruning and Rafferty. Many of those women believed that the white males who interrogated Professor Hill and voted to approve the nomination of Clarence Thomas to the United States Supreme Court both devalued women's stories and cared little about sexual harassment. Thelma and Louise reflects that reality. Another reviewer attacks the screenwriter, Callie Khouri, and assigns his own global meaning to the movie. He asserts that Louise's rape in Texas "seems to justify . . . hostility and acts of retribution directed toward any and all persons of the male gender . . . . For Callie Khouri, it seems logical and just that any man be punished for the historic suffering of women."27 But, Thelma and Louise do not punish "any man" for "historic suffering." They shoot Thelma's rapist, in part because he shows no contrition and therefore poses a real threat to other women. They destroy the phallic-like truck of a truck driver who demonstrates extremely repulsive behavior and then only after he refuses to demonstrate anything but contempt for them. They leave him unharmed. They disarm and restrain (temporarily) a cocky police officer who jeopardizes their escape. But other evil men (Darryl, Thelma's husband; and J.D., Thelma's one-night lover who steals their money) escape any punishment from the women. And both Detective Slocum and Louise's boyfriend, Jimmy, are sympathetic, well-intentioned male characters. Perhaps the strongest example of interpretive bias appears in the review of John Simon, writing for the National Review. He refuses to criticize the conduct of any of the movie's men, instead blaming the women and thereby demonstrating clearly the same perspective so often found in the legal system--that system which Thelma and Louise eventually reject. Simon writes that Thelma's husband "treats her as a backward child--a treatment, it must be said, not entirely unearned."28 He views the movie through perverted glasses and describes it in perverted terms: "With the winds of freedom playing in their liberated tresses, the car topless and the journey aimless, their joy is bottomless."29 His description of the rape scene is particularly telling: [The rapist] soon gets the somewhat drunk Thelma to dance with him in complete, newly emancipated abandon. You'd think that a woman . . . would not trust a man who dances with a beer bottle in one hand . . . but Thelma does, and even follows him out into the parking lot for a breath of sobering air. Provocative as she is, she gets not air, but attempted rape.30 Simon (curiously and distressingly) refers to an "attempted rape," although the movie makes it quite obvious that violent penetration took place before Louise rescued Thelma. And he ends his piece by asking, "Are these women, consciously or unconsciously, in love with each other? Is this perhaps not just a feminist but also a lesbian feminist movie?"31 At times, the debate focuses on minutiae rather than message, perhaps because that approach requires less soul-searching. One male friend was outraged by the movie. Why? Because the geography was all wrong, because Thelma and Louise frequently drove in the left lane rather than the right, and because they endangered the police officer by locking him in his trunk in the desert. One reviewer was also bothered by such details: how did Louise learn to shoot so well, what is she doing hanging around with a "silly housewife" like Thelma, and (again) the geography is wrong.32 Many of the reviewers are disturbed by the movie's lawbreaking theme and "gratuitous" violence.33 None of the reviewers discuss how violence in Thelma and Louise compares to the much more graphic violence and unwarranted law-breaking seen in hundreds of movies featuring male characters. How do Rambo34 and The Terminator35 compare? Another early movie also addressed the theme of lawbreaking by women. In the 1949 movie, Adam's Rib,36 a woman buys a gun, follows her two-timing abusive husband, and discovers him in the arms of his paramour. Even though she has never handled a gun before (in fact, she reads the instructions right before shooting it), she uses it to frighten her husband into faithfulness. He is wounded in the process and she is charged with attempted murder. In the movie, Spencer Tracy and Katherine Hepburn portray lawyers married to each other. Upon reading about the crime in the newspaper, Hepburn laughs with delight. She is convinced the husband deserved what he got. Tracy, however, is appalled that the wife violated the law: He: Crime should be punished, not condoned!Later, with Hepburn serving as the wife's attorney and Tracy as the prosecutor, Tracy walks out of the marriage, telling Hepburn that he sees something in her which he hates: "contempt for the law." He tells her, "The law is the law." But Hepburn wins the case by arguing that the law does not always work as well for women and convincing the jury that it must be applied fairly for both sexes. Perhaps some viewers are shocked not so much by the violence which Thelma and Louise exhibit, but rather because they expect women to behave more civilly. One literary critic writes: When the outcry against "sensation novels" was at its height in the 1850s and 1860s, the contemporary critics were considerably disturbed because so many of them were written by women . . . . Publishers seemed to feel there was something peculiarly indelicate about tales of crime or criminals being written by a woman, and were reluctant to print them.37But other viewers (and reviewers) may instead be disturbed by the movie's overt message that the law does not serve women well. This may be the crux of the issue. Some of the earliest successes took place in states' rape shield laws, enacted after women objected to their further victimization in the courtroom. Until that time, rape victims were often subjected to a barrage of questions about their own sexual experiences not only with the defendant, but with anyone. Today, the federal courts and all state courts offer some protection to rape victims in the form of rape shield laws.39 These laws generally exclude, to varying degrees of restrictiveness, evidence of a victim's prior sexual conduct and history. Still, a rape victim continues to face a number of accusatory questions in the courtroom: What was she wearing at the time of the rape--sheer black underwear from Victoria's Secret or "pajama panties" with girlish "pink polka dots"?40 Why was she in the bar/nightclub/dark street alone at night? Did she put up enough of a fight? A few years ago, a Texas grand jury refused to indict a rapist when it learned that the victim pleaded with him to wear a condom; apparently, her composure in the face of an "alleged" threat demonstrated that she must have consented.41 Even when a jury convicts the rapist, the victim suffers recrimination and continuing attacks on her credibility. After a jury found Mike Tyson guilty of raping Desiree Washington (at about the same time as Thelma and Louise was released), Washington continued to receive private and public criticism. A year and a half after the rape, she stated: "'I think I was also tried and convicted.'"42 Just months after the movie was released, national events demonstrated that Thelma and Louise were wise to doubt that they would be believed. It is still true that a woman's word is simply not valued as highly as a man's. In October 1991, Professor Anita Hill testified before the United States Senate Judiciary Committee that Supreme Court nominee Clarence Thomas had sexually harassed her. Instantly, judgments were made about her truthfulness and character, resulting in death threats, media campaigns directed against her, and a best-selling book about "the real Anita Hill," written by a man who never met her.43 Within hours of her testimony, one Senator stated to a television audience of millions that she had committed "flat out perjury."44 Even the President of the United States went on record as not believing her.45 Why, then, did some of the movie's reviewers find it so difficult to believe that Thelma and Louise would flee, rather than entrust themselves to the judicial machinery? Many women viewers found the movie believable for still other, more personal, reasons. Women whose husbands or boyfriends batter them often seek a "victim's protective order" or "restraining order" against the batterer. Many of them quickly learn that the law serves as no more than a "trick," providing them with a false sense of security. Thousands of abuse victims, usually female, report to the police that their boyfriends or husbands have beaten them or threatened to beat them. The victim risks her safety (and often her life) in coming forward and, in return, receives a court document prohibiting her assailant from entering her home or from coming near her. Over and over again, the woman learns that her assailant, often drunk or enraged, does not hold the paper in the same esteem as she does. In fact, he often ignores the court order and punishes her even more severely, or kills her, for daring to confront him with it.46 Approximately every fifteen seconds, a woman in this country is beaten by her boyfriend or husband.47 Between 2,000 and 4,000 of them die every year.48 In fact, such beatings are the most common cause of injury in women. "Of all the women who seek medical treatment in hospital emergency rooms, one-third are there to receive treatment for injuries suffered because of beatings by their husbands."49 Others have estimated that "four million women will be battered by their male partners on the level of aggravated assault in any given year."50 For these women, the court order itself may have served as no more than a "trick," lulling them into a deceptive, and dangerous, sense of security. For too many women, these facts have taught them the same lesson demonstrated in Thelma and Louise. They resort to self-help. Like Thelma and Louise, they look to a gun for protection because they know the law usually will not save them. Sometimes they kill their boyfriend or husband. When they do so, the law is quick to condemn them, particularly if they killed when the threat was not imminent. Only recently have courts begun to allow the "battered woman syndrome" to play a role in the murder trials of abused women, allowing experts to explain why a woman believes that killing her abuser is her only means of survival.51 Although this evidence may reduce the murder charge to a lesser degree offense, chances are she will still serve a prison term.52 But neither the battered woman syndrome nor a traditional claim of self defense fully addresses the criticism that Louise killed Harlan (the rapist) after the danger had passed. Louise herself acknowledged this problem. She tells Thelma they cannot plead self-defense because "[w]e were walking away. We got away." But still many women viewers love the movie and agree with Thelma when she later says, "And I'm not sorry that son of a bitch is dead. I'm just sorry it was you that did it, not me." Had they reported the rape and the subsequent killing, "They woulda made out like I'd asked for it. My life woulda been ruined a whole lot worse than it is now." Clearly, neither Thelma nor Louise could rely on a "battered woman" defense, and, if Thelma had already escaped from the rapist, why did his death seem so gratifying, both to Thelma and to many female viewers? Perhaps the answer lies in the recognition that the law neither protects women from rapists nor provides an adequate defense when they protect themselves. Although Thelma eventually escaped Harlan's clutches, Harlan's response demonstrated that he would victimize other women. After Thelma escapes and Harlan believes that Louise is not going to shoot him, he yells, "Bitch! I shoulda gone ahead and fucked her!" So Louise is right. Harlan is not killed because Thelma was in danger; he was killed because other women were and those women had no more legal protection than Thelma and Louise. Many viewers recognized this, many women viewers felt it, and they were therefore happy to see him dead.53 The same sequence is demonstrated in the other unhappy victim of Thelma's and Louise's rage--the odious truck driver, who harassed them on the highway by making obscene gestures as they passed him. First, they ask him how he'd feel if someone treated his sister, mother, or wife like he treated them. Then they give him a chance to apologize. Thelma: We think you should apologize.They fire at his tires. Truck driver: Goddamn you bitch.They blow up his truck. He was fairly warned. But when they realize he would continue his behavior toward other women, they react. Many viewers would argue they reacted reasonably--in legal terms, with "necessary force." They might have killed him, thereby engaging in the kind of gratuitous violence so often seen in other films with male characters. Instead, they do only what is necessary to teach him a lesson, to the great satisfaction of women viewers, many of whom no doubt have been subjected to this kind of unsettling highway behavior. But to those who brought to the movie a very different perspective and set of experiences, the movie looked unbelievable or fascist or merely irrelevant. Too often, those are the public reviewers. Too often, the "hermeneutic vicissitudes that elude the critic's awareness" remain unacknowledged.54 The same criticism might be raised within the legal system. It is still true that white males comprise the majority of judges and attorneys. If they approach a case the same way in which reviewers approach movies, they too will fail to appreciate how differently women see (and experience) events in their lives. As holders of race and gender privilege, white males may fail to appreciate their privilege and to appreciate that others do not share the privileges. Thus, their passions are transformed into objectiveness and truth, and the realities of those standing before them disappear. Several examples demonstrate a judge's apparently limited vision. One federal judge recently awarded sixteen women who had been subjected to sexual harassment for more than a decade a total of $ 182,500, or about $11,400 each (compared to the average $ 250,000).55 His opinion revealed that he could not understand why one woman was fearful when a man who she said had exposed himself to her several years earlier began driving his truck in circles, over and over, around her work area. "This court has difficulty understanding why the appearance of a suspected flasher outside the building in which she was working . . . would cause great fear--of something--in a reasonable woman."56The judge also could not understand why a woman would fear rape simply because "a man who had repeatedly and crudely propositioned her suddenly lunged at her one night at work with his arms spread, only stopping when she began screaming."57 The judge speculated that the man might have "merely intended to say, 'boo.'"58 The judge accused the women of hysteria, overreaction, and paranoia. When one woman found the clean clothes in her locker soiled by semen, three times, the judge determined that she confused "suspicions . . . with reality."59 The final outrage occurred when the judge placed into the court record "numerous intimate details of the women's physical and gynecological records," including "a discussion of the birth of one plaintiff's child, which she had said was the result of a rape."60 The judge decided "that the birth was most likely caused by consensual sex."61 Yet another judge erased a man's two-year-old conviction for wife-beating when the man claimed he needed a clean record to join a local country club.62 The man had been convicted after battering "his wife's head into a tile floor numerous times while shouting, 'I'm going to kill you.' At the time, he was under a court restraining order barring him from the home."63 The judge noted that he wished "to remove a stigma in the way that society looks upon" the man.64 Just a few years earlier, this same judge, "while sentencing a man for raping an unconscious woman . . . observed that finding a woman passed out on the couch was 'the dream come true for a lot of males, quite frankly.'"65 Another judge sentenced one man to just eighteen months for killing his wife after finding her in bed with another man. The judge sympathized with the defendant: "I seriously wonder how many married men . . . would have the strength to walk away . . . without inflicting some corporal punishment . . . . I shudder to think what I would do."66 One judge told a woman who had been separated from her husband for a year that her battering, which required seventeen stitches to her face, was not "completely unprovoked."67 The angry man found his estranged wife in bed with another man. The judge agreed that the beating was wrong; "To have slapped you might have been, you know, something more normal and walk away from it, or whatever, or to punch him out, whatever, not to the extent of what he did to you."68 The defendant was sentenced to twenty-eight days in jail to be served on weekends. Judges possess tremendous discretion, not only in sentencing. For example, judges decide whether or not testimony in a case holds "probative" value. They decide relevance. They decide whether or not expert testimony might be helpful to jurors struggling to decide guilt or innocence. These decisions become of utmost importance in cases involving rape and battering--those cases which uniquely impact women's lives and well-being. And the judges whose decisions determine women's fate rarely have any personal experience as victims of such offenses. Certainly it can be argued that a judge takes his role more seriously than a movie reviewer. Perhaps. But if the reviewer, as a holder of privilege, fails to recognize his bias and privilege, then, too, the judge of privilege may "slide into decisions without allowing himself to realize that [he is] making any."69 He, too, may assume that his reaction is the only legitimate one and may believe that his "objective" evaluation represents "eternal truths."70 of the eighty-five cases in which battered women claimed self-defense, testimony was offered in forty-four cases, but was admitted in only twenty-six. Women were convicted in all the cases in which the evidence was excluded. Even in the twenty-six cases in which the jury was allowed to hear the expert, seventeen women were convicted.Id. (citing Charles P. Ewing, Psychological Self-Defense: A Proposed Justification for Battered Women Who Kill, 14 LAW & HUM. BEHAV. 579, 584-85 (1990)) (footnotes omitted). 53. Viewers who were disturbed by Harlan's "unnecessary" murder would surely be baffled by the savage murder of the boutique store owner in the foreign film, A Question of Silence (C.O.W./Sigma Films 1983). In this powerful film, several female shoppers kill the male store owner because of the male oppression he represents, not because he committed any culpable act. Other female shoppers watch in complicity. 54. MIRIAM HANSEN, supra note 16, at 253. 55. See Kirstin Downey Grimsley, Judge Put Small Price on Pain; Damage Award Paled by Litigation Norms, WASH. POST, Oct. 28, 1996, at A13. 56. Id. 57. Id. 58. Id. 59. Id. 60. Id. 61. Id. The judge based his conclusion on a 28-year-old hospital report and his own speculation. He claimed in his report that this incident demonstrated the woman's "propensity or inclination to favorably reconstruct events, by hindsight, to bend them to her advantage." Id. 62. See Joan Jacobson, Judge Wipes Out Conviction of Man Who'd Beaten Wife; Attacker Says Record Blocked Membership in Local Country Club, BALTIMORE SUN, Feb. 6, 1997, at 1A. 63. Id. 64. Id. 65. Id. 66. Karl Vick, Md. Judge Taking Heat in Cuckolded Killer Case, WASH. POST, Oct. 30, 1994, at A1. 67. Laura A. Kiernan, Victim "Stunned" by N.H. Judge; Comments, Sentence in Domestic Assault Prompt Outrage, BOSTON GLOBE, June 5, 1993, at Metro/Region 1. 68. Id. 69. RUSS, supra note 21, at 18. See also supra text accompanying note 21. 70. AISENBERG & HARRINGTON, supra note 22, at 53. See also supra text accompanying note 22. |
