“The Unkindest Cut of All”: Coloniality, Performance and Gender in the Courtroom and Beyond

Chapter 14
“The Unkindest Cut of All”: Coloniality, Performance and Gender in the Courtroom and Beyond¹

Chloé S. Georas

Introduction: “The Unkindest Cut of All”²

On June 23, 1993, in Manassas, Virginia, after years of physical and verbal abuse that, according to testimony, culminated in another episode of marital rape, Lorena Bobbitt took an eight-inch red-handled steak knife from her kitchen and cut off the penis of her husband and ex-Marine, John Wayne Bobbitt.³ She drove off with the penis and later discarded it on a grassy lot, where it was recovered by a police rescue mission and successfully reattached to her husband. John Wayne was tried and acquitted of marital rape charges. Facing a possible sentence of up to 20 years for “malicious wounding,” Lorena claimed not to remember the act and deployed the insanity and battered wife syndrome defenses in response to the prosecution’s argument that she had done it for revenge. Lorena was found not guilty by reason of insanity and spent only a few days in a mental hospital before being released.⁴ Through her transgressive “cut felt around the world,”⁵ Lorena Bobbitt not only amputated the organ that symbolized her misery but achieved instant fame. The globalized media machineries disseminated the infamous Bobbitt saga, variously appropriated along the lines of entrenched cultural anxieties.

Readers may wonder at the rationale for the inclusion of an article on the Lorena Bobbitt trial in this volume that addresses the Rivonia trial and the figure of Nelson Mandela. What could the Rivonia trial and Nelson Mandela, as one of the most consecrated historical icons of “post-colonial” struggles for equality, have in common with the trial of Lorena Bobbitt, an unskilled immigrant worker with no history of political activism that garnered lukewarm support, and usually condemnation, from intellectual elites in the United States? In fact, these disparate trials provide a unique opportunity to explore the courtroom as a space of domination and resistance. On the one hand, the Rivonia trial takes us to the contended heart of a nation-building project beyond the institutionalized forms of Apartheid racisms and, on the other hand, the Lorena Bobbitt trial takes us on a (mis)guided tour through the ethno-racial and sexual imaginary of the United States in relation to Latin America and the constitution of Latino identities.

Quijano’s notion of “coloniality of power” shows how despite the success of the nineteenth-century struggles for independence in Latin America, the forms of colonial domination (ethnic, racial and economic) continued to be reenacted within the frames of the newly formed nation-states. While classic imperial colonization normally refers to a wide-ranging, direct domination of territories by a central power, coloniality of power signals the more subtle domination deployed by the neo-colonial cultural hegemonists.⁶ The ethno-racial hierarchies of colonialism are still reenacted despite the formal eradication of colonialism. Thus, coloniality can exist without a colonial administration or independence without decolonization (Latin America).⁷ The importance Quijano places on the cultural constructs of colonial history such as race and ethnicity show the impossibility of conceptualizing the material relations of domination alone; that is, without seeing their inscription in the social imaginary of domination: the images and words power deploys in the contested terrains of inequality. Coloniality is an axis of domination that is inscripted in, but distinct from, capitalist axes of exploitation. Coloniality and modernity are brainchildren of European expansion and colonization, leading to the invention of the Americas, Europe and Africa in a new geography of the world that privileges the West as the hegemonic social imaginary and trumpets the capitalist world system.⁸

The United States, as a site of settler colonization that achieved independence without decolonization, is deeply implicated in the histories of coloniality through the deployment of ethno-racial-sexual hierarchies that keep the others in their place despite the inclusive language of US liberalism. Latin America is one of the spaces of unfathomable otherness against which the United States reifies its own modernity and civilizatory progress. Thus, Latino identities in the United States are inscripted in long and complex histories of conquest and domination, dating to the invention of the Americas, and cannot be understood outside of historically situated social imaginaries of coloniality.⁹

Latinos are different from other waves of European immigrants to the United States. For one, Chicanos and Puerto Ricans have been directly “colonized, discriminated against and torn between a discourse of assimilation and citizenship and the realities of racial discrimination and poverty.”¹⁰ Second, the resentment of those affected by US interventions in Latin America has led to resistance to assimilation. Rather than moving inexorably toward assimilation, the Latino diaspora in this time of globalization exists in:

a contrapuntual dwelling in/of modernity, where the homeland is not simply left behind but enters into multidirectional processes and configurations … [Latinos are] inhabiting simultaneously and/or alternatively many cultural and political spaces of political and cultural articulation. This plurality of identification (as opposed to stable identities) moves back and forth between the national and the transnational.¹¹

In this sense, it can be said that Latinos are part of a trans-American imaginary, a cultural geography or chronotope inhabited by transnational people “whose lives intersect in complex ways with the heterogeneous meanings of the symbols of ‘Americanness’.”¹²

Lorena Bobbitt became an important figure in the contact zone of the trans-American imaginary that made visible the coloniality of the discourses and representations of Latinos in the United States. She simultaneously destabilized and reified the highly racialized/gendered political and cultural borders that articulate the modern colonial American imaginary.

Show Trials as Sites of Critique and Resistance

In litigation parties contest their competing stories “before a public tribunal whose decision is rooted in law, has the potential of being the final word on the parties’ dispute, and serves as a binding or persuasive authority for future similar cases or controversies.”¹³ Despite the years of debate over the influence of politics, economics and ideology on judicial decision-making, the dominant and traditional view of law is that it is a value-neutral enterprise. Critical legal scholars, in contrast, embed the legal domain in an analysis of relations of domination and see the very appearance of legal neutrality as an effect of power. The law is no longer seen as a reflection of an objective truth divorced from cultural specificity, but rather is inscribed interactively in cultural processes.¹⁴ In viewing a trial’s cultural inscriptions, narrative analysis, performance studies and anthropology have proven to be germinal spaces to look at the forms and strategies of power articulated through legal proceedings.

Contextual legal studies move away from positivist and objective interpretations of the law in favor of a post-structural re-examining of how the law constitutes the social through the enactment of legal categories and premises that organize particular configurations of discourse to power. Post-structuralist debates on the discursive strategies that inscribe the interpretation of a text, irrespective of the intentions of its author, have made visible the ideological underpinnings of discourse and opened legal texts to narrative analyses. Language no longer is understood to represent reality, but rather language becomes constitutive of that very reality. The privileging of certain discourses at the expense of others and the selective deployment of terms and solutions becomes relevant as parties contest “facts” by mobilizing competing interpretive frameworks.¹⁵

Performance theory goes beyond the common assumption that reality is a social construction by recognizing that “our lives are structured according to repeated and socially sanctioned modes of behavior” and thus raising “the possibility that all human activity could potentially be considered as ‘performance’, or at least all activity carried out with a consciousness of itself.”¹⁶ Despite the “vantage of cultural practice” where “some actions will be deemed performances and others not,” the performance principle can be applied “to all aspects of social and artistic life. Performance is no longer confined to the stage, to the arts, and to ritual. Performance is everywhere linked to the interdependence of power and knowledge.”¹⁷ Trials are particularly amenable to an analysis from the perspective of performance studies given their inherent dramatic structure.¹⁸

The structures of storytelling have been successfully applied to the analysis of legal spaces. Feigensen emphasizes the melodramatic conception of tort liability trials as narratives where: (1) individual agency is seen to cause an accident; (2) the individual’s intrinsic character traits are the locus of causality for the accident; (3) the characters of the trial are divided between good and bad guys; (4) the focus of the trial is the suffering of the victim; and (5) good wins over evil at the trial.¹⁹ Storytelling both shapes how we think and is a primary means through which breaches and violations become articulated legally. A narrative structure has emerged by looking at trials, namely, a steady state where norms prevail is destabilized by a breach that calls for some sort of action to either restore or transform the status quo.²⁰

These forms of processual analysis clearly have a great debt with how anthropologist Victor Turner theorizes human experience as generally organized around “social dramas” or “processual units.” Social dramas, trials included, represent sequences of publicly enacted events that are typically structured in four phases:

1. Breach phase as the violation of norms within a field of social relations.

2. Crisis as the phase of mourning and escalation that can extend to become coextensive with a dominant cleavage unless it can be contained. This phase is when the real state of affairs is revealed.

4. Phase of reintegration or recognition of the schism.²¹

Trials as social dramas evince the narrative aspects of social expression and ritual moments of liminal transitions where norms are both suspended and revealed, opening a space for their re-entrenchment or transformation.

In her application of psychoanalytic literary theory to the analysis of trials, Shoshanna Felman deploys the concept of a cultural “abyss.” An abyss inhabits us like an “internal hollowness” which resists awareness and cannot be seen. Trauma as abyss becomes an “accidented” space through which culture reveals itself as an unknowable gap.²² The abyss cannot be totalized and thus cannot be contained in the closing argument of a trial. Law tries to bridge the bottomless abyss through legal rationalizations and codifications in an attempt to guard against the implacable irregularity and irrationality of the abyss. Although law tries to build a conscious foundation for the quintessentially unconscious and groundless abyss, the story of law and trauma is that of ships in the night doomed to the repetitive reenactment of the trauma, defying the closure sought by law. Thus, law is pre-destined to fail in its attempt to transform the traumatic abyss into undoubted facts.²³ In this way, the Nuremberg trial, The Kreutzer Sonata and the O.J. Simpson case become compulsive repetitions of the traumatic experiences of the Holocaust, sexism and/or racism.

Both Turner and Felman offer theoretical structures to understand conflict, but the first is informed by anthropological/cultural analysis and the second by the application of psychoanalysis to a collective societal unconscious. Since history for Felman becomes animated by an immanent unconscious that is unknowable and inaccessible, she can deny the interpretive agency of different actors within the social field and put the emphasis upon their incapacity to see rather than on the multiple interpretations, visibilities and representations surrounding any traumatic conflict. For instance, lawyers are not necessarily condemned to deny the existence of an underlying trauma through legal codifications, but can wield a certain amount of interpretive agency in how they maneuver within the rules and present the “facts.”²⁴

Felman negates the multiple appropriations and struggles over meaning that are not reducible to modalities of blindness, instead of seeing them as creative engagements within broader fields of social conflict both within the legal arena and outside. In contrast, for Turner, visibility of the conflict is not precluded for social actors. The moment of crisis can actually be a moment of unmasking of the status quo (which if not as ultimate truth neither must it be as Felman’s ultimate “unknowability”). In Turner there can also be resolution in certain scenarios of crisis whereas in Felman a traumatic abyss is inevitably condemned to repetitive legal reenactments. However, the Turner model can sacrifice the complexity of events that are compressed too strictly into the four-phase structure, and like Felman’s it does not accommodate easily the problem of multiple appropriations and subject positionalities within a conflict, namely, how one person’s breach can be another’s redressive action. Turner has a pragmatic and teleologically linear approach to the abysmal moments of crisis, breaking it down into operational parts that enable social systems to function whereas Felman points to the larger-than-life unresolvable philosophical disfunctionalities and repetitive circularities of social traumas in social formations that, nevertheless, require decisions to be made. Both Felman and Turner offer theories to navigate the traumatic wounds of historical social imaginaries that can reemerge in different scenarios and often cannot be fathomed within the language and proportions of the law, on the one hand, or to conceptualize the structural moments of liminal shifts in, or reification of, the status quo, on the other.

The multiple rings of audiences invoked by a trial are crucial to understanding its engagement with the constitution of social imaginaries and the body politic. Criminal trials in particular are mandatory insofar they arise from a violation against a community and, as such, invoke the body politic at large that needs to be repaired by way of the law.²⁵ Criminal proceedings necessarily implicate “the people” as spectators of the historical process of establishing hegemonic interpretations of events perpetrated against a system.²⁶

Although all trials are for show in that their function is to announce and enforce norms and show that the system is working, some trials are showier than others either because they involve, for instance, momentous historical events (Holocaust) or celebrities (O.J. Simpson and Michael Jackson). According to Felman, “[i]t would be safe to say that every major trial essentially involves ‘something larger than law’. In every major trial, and certainly in every trial of political or of historical significance, something other than law is addressed in legal terms and is submitted to the narrowness of legal definitions.”²⁷