Introduction

For most contemporary bookish people, the fabric of theater is dialogue. But we strive to reconstruct in our minds this dialogue as it first appeared in the theater. We have not been to Epidaurus or Athens to attend the theatrical contests played by the technitai, the societies of Dionysian actors who brought both Sophocles and Aristophanes to the people. We have not seen Plautus’s and Terence’s comedies represented in Mérida’s Roman theater (where Seneca’s gruesome plays may also have been represented). We have not been in the city of Arras in the twelfth century to enjoy, with the rest of the populace, the theatrical contests frequently won by Adam de la Halle. We have not been part of the crowd at the Spanish corral de comedias to see with our own eyes Lope de Vega’s Fuenteovejuna, Ana Caro de Mallén’s Valor, agravio y mujer, or Calderón’s Alcalde de Zalamea. When we travel to France or to Italy, it is not to attend court theater with the king or see a play performed for the marriage of a member of the house of Medici. But we strive to imagine them in the theater in three-dimensional space and time, in all their color and movement, to feel the passions the actors conveyed, to experience them in affective spaces. Why don’t we do this with legal dialogues?

Julie Stone Peters’s Law as Performance shows us that performance and theatricality are always at work in law, helping us reconstruct historical legal experience as three-dimensional experience: kinetic, sensory, affective.Footnote ¹ Peters shows us that what Andreas Philippopoulos-Mihalopoulos has called the lawscape is in fact a theaterscape.Footnote ² There is no lawscape – Peters demonstrates – without performance. No matter how many times theatricality has been criticized and censored as alien to the production of justice, it always finds its way into law. Focusing on gesture, movement, bodily position, actions that take place both on the thresholds of justice and in the thick of the judicial process, Peters shows us that performance is paramount for justice-making or law-making, or are these synonyms?

And yet, in striving to highlight the importance of the nonverbal elements of legal performance, Law as Performance sets aside (as a physicist would set aside air resistance to produce an experiment) one of the most central elements of performance generally and of legal performance in particular: dialogue. Dialogue is a constitutive element of legal performance: as central to it as both sound and silence are to music. In this chapter, in conversation with Peters’s work, I take up the question of legal dialogue. Dialogue, as I will suggest, is in fact not only about exchange of words and ideas or the discovery of truth. It always involves the creation of affective space. This affective space establishes mood and emotion and gives meaning to the vocabulary of dialogue: It configures the stage of dialogue and the things that will happen on that stage.

Placing dialogue front and center may immediately bring to mind Bakhtin’s The Dialogic Imagination, so central to discussions of discourse, literary form, and much more. But Bakhtin treats dialogue as if it were independent of its institutional formalization. Looking to dialogue only as a vehicle for the free play of ideas, the carnivalesque, he fails to register the structures and strictures of dialogue: its regulatory power. Nowhere is the regulatory power of dialogue more evident than in law, where legislation, handbooks, and manuals strive to script legal dialogue: forcing the translation of the vernacular into orthodox legal language; excluding unorthodox affect.

However, if legal scripts govern dialogues, shaping affect, affect – which can never be fully controlled – also modifies legal scripts. In fact, legal dialogue always takes place in spaces charged with ungovernable affect – spaces where improvisation may undo the script, spaces where perplexity, danger, and the fight for survival are at play. Peters shows us that fight for survival in the ferocious struggles against scripted orthodoxy she describes – struggles that Foucault referred to as “illegalisms” and that he viewed as both inside and outside of the law, with the capacity to turn around the lawscape itself.Footnote ³ It is in that fight for survival, on that precarious threshold between law’s scripts and improvisation, at once inside and outside of the law, that we can find a poetics of the affective space.Footnote ⁴ At the moment of silence or between silence and speech, on the threshold, performance, improvisation, and danger meet.

6.1 The Laws of Dialogue

6.2 Dialogue in the Lawscape

Conclusion

When Sinibaldo de’ Fieschi (later Pope Innocent IV) argued that only living voices had juridical value, he was thinking precisely of how the law was performed: The body cannot lie, he felt, whereas written texts, scripted documents and transcriptions were unreliable. If anyone wanted to give credit to a dead animal skin (a parchment, or vellum), it could not serve by itself but would have to be supported with the presence of an authoritative person, someone who had actually been present during the agreement, the trial, or any other judicial event.Footnote ³⁹ In looking at dialogue, I am not focusing only on the dead voice: the antinatural body of textual documentation. I am focusing on the living voices that can still be found in the margins and between the lines of the text. Dead voice may hide the affective elements that were once part of the original, oral, bodily dialogue, but this does not mean that we cannot try to imbricate ourselves into this affective space and try to understand how it works. We can restore the living voices of the legal dialogue by attempting to find them in the parchment. We can seek those whom the law attempted to erase, those who expressed their resistance to the lawscape from within the lawscape. In this, we can locate that moment of danger that – as Benjamin once put it – flashes like lightning and constitutes history. In a certain way, fragmentarily, this is what I have tried to do in looking at dialogue – not as a corrective, but as a supplement to what Peters has given us in Law as Performance.

Among the complaints that have been leveled at lawyers for their stilted, insincere, affected, disingenuous, and overly emotional carryings-on in the courtroom, the bill of particulars itemized by commentators in the early modern period offers an especially helpful catalogue. The denunciations from this era cover most of the concerns that typically figure in diatribes against lawyers, while offering an intriguing qualification that anticipates more contemporary concerns. In addition to the usual accusations of lying, obfuscating, and stirring up their audiences, a number of commentators also argued that lawyers degraded public discourse and damaged civil society more broadly by leading people to trust their emotions and to abandon rational grounds of argumentation. These critics were writing at a time long before cross-examination became a regular feature of the trial in common-law jurisdictions, and their objections would take on a new and potentially even more dangerous form when a lawyer’s manipulative efforts could be used to badger a witness. Since at least the mid nineteenth century, the theatrics of cross-examination has played a central role in courtroom fiction and drama. Less attention, however, has been directed at judges who avail themselves of similar methods when seeking to amuse or sway the audience, in some instances by impersonating one of the figures in the dispute. Judges from the seventeenth and eighteenth centuries are sometimes cited for their inappropriate efforts at humour or their inability to control their temper, generally with the implication that these are problems of the past. Using a recent US Supreme Court case as an example, I suggest that judges have not abandoned these practices, even if their tactics are somewhat different.

In Law as Performance, Julie Stone Peters helpfully synthesizes a number of attacks on lawyers from the early modern period.Footnote ¹ In what follows, I will first take up some of the questions she raises about commentators from that era, in order to understand what was distinctive about these complaints concerning lawyers’ histrionics, as against the many other complaints about the corrupt and deceptive practices of lawyers and judges. Next I turn to the use of cross-examination as it began to develop near the end of the eighteenth century and grew in the course of the nineteenth century. This change in trial procedure allowed lawyers to think of themselves as actors in a way that differs from Peters’s main examples, but that persists in contemporary forensic practice. Finally, I ask how Peters’s analysis might help make sense of the less obviously dramatic, but nevertheless theatrical behavior, of judges, particularly when they encourage the audience to laugh in response to their questions, posed in the guise of someone who might be confused or surprised by the provisions at stake. This last section brings out an aspect of judicial behavior that is not commonly associated with lawyers’ theatrics. Judicial humor takes many forms, which do not necessarily involve something like a dramatic persona. I hope to show, however, that in some instances, judges merge roles – the role of an impartial interlocutor attending to policy questions, and that of an individual to whom the law might apply – in a way that seems highly theatrical.

If we may take it for granted that every courtroom argument depends on numerous decisions, some more conscious than others, about how to use language and gesture to support an argument, the dynamic and interactive aspect of the process nevertheless bears emphasis. I take “forensic performance” to include the array of dramaturgical techniques that inform Erving Goffman’s account of “the presentation of self in everyday life,”Footnote ² extending not only to ways of affirming one’s own position but also to ways of portraying the various figures or propositions that might be in contention, in a legal dispute. As exhibited in the courtroom, these practices include the use of speech, gesture, and ritual to convey arguments, embody or criticize legal authority, and impersonate a party, witness, or any other participant in an actual or imagined scenario that animates some aspect of the dispute. The audience for these performances may be directed at all or part of the courtroom audience, and also at imagined observers in the larger public. Finally, these performances may be associated with anyone speaking in the courtroom, but are likeliest to be staged by a repeat player familiar with the norms and dynamics that characterize the forensic sphere.

A frequently repeated complaint about legal performances in any register branded as indecorous is that they appeal to the emotions rather than the intellect. The point is made most concisely by the example of the histrions – Greek actors banned in Rome for more than a century not only as foreign thespians, but more importantly also as erotic and physical threats to propriety. The histrions were famous for walking though the audience half-naked and provoking inappropriate excitement. The provision in the Digest that records the ban (infamia) on the histrions is immediately followed by a ban on citizens maintaining brothels.Footnote ³ Complaints about unacceptable courtroom histrionics may not reflect any awareness of the term’s origins, but this compacted set of associations nevertheless shows how objections to improper performances may capture a range of anxieties about their dangerous effects.

7.1 Theatre of Injustice

In chapter 5 of Law as Performance, Peters discusses a litany of complaints dating from the late fifteenth century through the seventeenth century, amounting to what she calls an “anti-rhetorical tradition.”Footnote ⁴ Some of these diatribes simply add a theatrical coating while repeating well-worn themes that we encounter in other denunciations of the legal profession, asserting that lawyers gravitate naturally toward the weaker cause, which they strive to dignify as the superior one; that they bribe witnesses and judges; that their flowery rhetoric and energetic imagination help them lie and deceive for their clients.Footnote ⁵ However, some of these attacks address the dynamics of forensic performance in ways that pick out more specifically why it is that role-acting in the courtroom can produce distinctive effects that reach beyond the courtroom, and these examples deserve further attention.

Johannes Ferrarius, writing around the middle of the sixteenth century, says that lawyers can seduce “the iye and eare” and “move any manne [to] evill,” or “stirr naughtye persones to unquietnesse.”Footnote ⁶ He adds that “where the number of Lawyers dooe swarme and flocke together, … every courte, every private mannes house [is] in a great sturre and tumult by [the] dissensious sutes whiche those craftye marchantes” provoke.Footnote ⁷ Peters observes that Ferrarius’s criticisms “reflec[t] the broader associations between lawyers and theatre that became recurrent figures in humanist texts.”Footnote ⁸ Giovanni Pico della Mirandola worries that lawyers have an extraordinary ability to “deceive, circumvent, [and] practice sleight-of-hand tricks,” amounting to a talent for “transform[ing] things … as if by … magical force, … so that they assume whatever face and dress you wish.” The result is “sheer lying, sheer imposture, sheer magic tricks, [which], like so many masks and simulacra, … dupes the minds of [the] auditors.”Footnote ⁹ Juan Luis Vives associates lawyers’ “refined and polished style of speaking” with a feminized tradition of oratory, which has “laid aside its manly garb and put on a woman’s attire.” This style, “better suited to swaying the minds of the judge and all the bystanders,” is “better suited to the stage” than to the courtroom, and it encourages the audience to behave “as if they were being entertained in the theatre.”Footnote ¹⁰

Erasmus, in his Ciceronianus (1528), says that juries “expec[t] and even deman[d] of the advocates an embellished style” that is “designed to misrepresent the truth, … to infiltrate the hearer’s mind by deception, and finally to carry his intelligence by storm through rousing his emotions.”Footnote ¹¹ Heinrich Cornelius Agrippa, in On the Vanity of Arts and Sciences (1531), writes that the lawyer’s art of pleading is “an ancient, but most deceitful Calling, onely set out with the gaudy Trimming of Perswasion, which is nothing else, but to know how [to] over-rule the Judge, and to turn him and winde him at pleasure.”Footnote ¹² Agrippa envisions a lawyer twisting and wriggling in a performance that invites the audience to imagine themselves in the same role: These “Mimmick[s],” he writes, may be seen “looking with their Eyes like men distracted, throwing their Arms about, dancing with their Feet, lasciviously shaking their Loyns, with a thousand sundry sorts of wreathings, wrestings, turnings this way and that way of the whole Body.”Footnote ¹³ This description almost makes the advocate sound like the faith healers of a later era, calling on the audience to experience the same sensations he is modeling.

John Jewel pursues the same theme in an “Oration against Rhetoric” (ca. 1548), which will be particularly salient for my later comments on cross-examination. Jewel imagines a wildly histrionic lawyer whose gesticulations are meant to prompt the observers to respond in kind, imaginatively if not physically: “Why that thrashing about of the body? Why that sudden contraction? that waving of arms? that slapping of the thigh? that stamp of the foot? Why is it they speak not with the mouth, not with the tongue, not with the jaws, but with the hand, fingers, joints, arms, face, and the whole body?” The appeal to emotion, Jewel writes, makes a mockery of the usual forms of legal authority, rooted in evidence and expertise: “What good are courts, laws, oaths, rules, … judges, and magistrates? Why would we appeal to the authority of witnesses, of records, of speakers, of writers, of examinations, of experts in law?”Footnote ¹⁴ There are trustworthy sources of information, and reliable figures who can explain and interpret them, but these sources are sidelined in favor of the advocate’s deceitful rhetorical stratagems. Francesco Patrizi’s On Rhetoric (1562) also imagines a crowd of auditors reacting passionately to the advocate’s oratory. He likens the observers to “a wild beast with many heads that are always barking and that … deafen its spirit, dazing it so that it cannot see the light or discern the truth … And the master orator always has the power to awaken that beast and to make it bark from whichever … of its heads he pleases.”Footnote ¹⁵ There are a number of other diatribes to similar effect, confirming the general sense that lawyers stir up the audience’s emotions, play on the jurors’ prejudices, and do their best to hoodwink the judge. These denunciations, attacking malevolent actors for provoking wild and impassioned reactions from uncontrollable audiences, imagine affect as a negative response, as if it arises only in a dangerous form, to be contrasted against an implicitly calm and emotionless state that would appear to be the proper register for legal argument. Yet as Jesús Velasco argues in his contribution to this volume, all dialogue and all performance are gauged to generating affect, creating atmospheres of feeling that bring the written word alive. It is others’ use of rhetoric that deserves to be castigated.

How do these complaints differ from familiar indictments contending that lawyers lie, twist the law to their clients’ purposes, create ambiguity where none exists, and generally act out of self-interest? It is, after all, common to see lawyers charged with suborning witnesses, raising spurious allegations, and exaggerating their client’s plight while diminishing the adversary’s. In some ways the differences are not very great. It seems outrageous that lawyers take facts and evidence and justice, which should be clear, and produce results that are manipulated and contrived, and treat that process as a matter of course. By the same token, that which everyone else considers natural is made through legal processes to appear contrived, and the lawyers take what should be self-evident and claim that it depends on particular circumstances and conditions that make the answer obscure and controversial.

However, most complaints along these lines are limited to the sphere of the courtroom. They apply only to the facts of the case, or to interpretive disputes that arise within the litigation. Lawyers exaggerate their clients’ injuries while minimizing those of the other party, or they try to make simple and straightforward questions appear murky and complicated. A lawyer in William Wycherley’s The Plain Dealer (1676) typifies these criticisms when he boasts of his ability to “extenuate or amplifie Matter of Fact; baffle Truth with Impudence; [and] answer Exceptions with Questions, though never so impertinent.”Footnote ¹⁶ English Restoration satire is full of similar instances, in which lawyers aid clients in bringing spurious claims and putting on false evidence.Footnote ¹⁷ According to these accusations, the harmful effects of lawyers’ behavior are felt within the frame of a particular case, and so, by implication, they are contained to that extent.

Just as the harm is limited in this way, the kind of deception that lawyers practice also has a limited reach in these accounts. The judge may be deceived, and perhaps even the jury, but the ridiculous and offensive circumlocutions of legal language and the contrivances of the conniving counsel are seemingly apparent for everyone else to see. The deception is easily detected. The person who exposes these practices does not claim that any deep or acute insight is required to perceive the problem; a simple description of the lawyers’ antics makes the lie patently evident to all. The lawyers are not simply indifferent to the truth – they want to be believed, and they rely on feigned evidence and false witnesses rather than behaving as if the source were irrelevant.

However, as Peters points out, a crucial part of the complaint about lawyers who act out roles and imitate actions and passions involves their efforts to appeal not only to the jury, but also to the other spectators in the courtroom. When this larger group can be provoked and incited by the lawyers’ efforts, the resulting dynamic introduces a problem of a different order. The result is to enlist the audience, in real time, as active spectators to a performance in which they are also contributors to some extent. This immersive and interactive engagement transforms the conditions of the courtroom, yielding what Velasco characterizes as a mood or atmosphere, an affective space governed by the dialogue between the lawyers and the audience.Footnote ¹⁸ The lawyer seeks to raise the spectators’ passions so that they participate, emotionally and bodily, in the drama being staged. They become involved in a way that goes far beyond temporary approval of the legal result. They are not simply laughing or hissing at some statement; the performance shapes their beliefs and produces a shared, communal sense of involvement, in real time, as the audience members affirm and encourage each other’s reactions. Their passionate involvement creates risks for the community more broadly, in a way that a lawyer’s factual falsehoods or clever interpretive arguments would not.

This participatory role explains why people can be “stirr[ed] … to unquietnesse,” as Ferrarius put it, and why they have ever-increasing expectations of rhetorical hyperbole. Their demand for melodrama, or whatever theatrical mode appeals to their degraded appetites, does not merely indicate a taste that the lawyers are catering to, but a taste that the lawyers are cultivating and degrading even further.

Lawyers may help people get away with murder through specious arguments, and that can do terrible harm, but lawyers who actively engage members of the community, and sway their views by eliciting their emotional responses in court, can degrade public discourse and destroy communal life in an even more thoroughgoing way. Theatrical performances are communal, participatory, and dynamic, and this is what separates them from the other harms that lawyers inflict.

This point about the dynamic and participatory nature of the enterprise may seem obvious but it bears emphasizing. When scholars talk about law in relation to performance, or theatre, or magic, they usually dwell on questions about the efficacy of the performance (à la J. L. Austin), or the contrived nature of the theatrical stage effects, or the advocates’ ability to distract and surprise when they draw on their bag of tricks.Footnote ¹⁹ Accordingly, the analysis tends to focus on the performers and perhaps their control over the audience, as if the observers could be treated as a by-product of the lawyers’ efforts. To be sure, there has been a considerable amount of research on juries, and even the wider audience, by scholars of a sociological or anthropological bent, and some work in media studies has sought to explore these issues. But it remains comparatively unusual for research in this vein to see the audience as a significant factor in the analysis.

This gap in contemporary scholarship on the social and cultural production of legal doctrines and norms suggests an observation about the use of systems analysis as a means of understanding legal change. A systems analysis approach would look to statutes, rulings, norms, governments, trials, courthouses, practices of storage and retrieval, lawyers, juries, economies, the media, and other elements to see how iterative dynamic changes resonate through the system.Footnote ²⁰ A significant amount has been written on the decline of the trial and the rise of settlement and plea bargaining as means of dispute resolution in Britain and America,Footnote ²¹ but scholars have not drawn out an implication that follows from the point that Peters makes – namely that as opportunities decline for theatrical performance in the courtroom, and as the nature of that performance changes, that is bound to have systemic effects on other parts of the system and the results that the system produces. The point is not only that settlement and plea bargaining yield results that would not necessarily obtain at trial, nor that evidence may come out at trial that no one sees, when the parties settle – although those are also important considerations.Footnote ²² Rather, the point is that the participatory nature of the trial also has significant effects on the outcome and the community in which the trial occurs, and therefore on the system as a whole – effects that are altered in ways that tend to go overlooked as trials become the exception. In sum, Peters’s attention to the lawyers’ audience brings out important dimensions that conventional treatments of legal performance have tended to overlook.

7.2 Cross-Examining Mr. Cox

I turn now to a later historical context, outside the boundaries of Peters’s discussion, involving the rise of cross-examination in trials in Britain near the end of the eighteenth century. For reasons that need not concern us here, cross-examination did not play a significant role in trials at common law before this period. The later eighteenth century marks the first period in which criminal defense lawyers engaged in cross-examination to any significant extent, and the first period in which lawyers started to write manuals about how to conduct a cross-examination.Footnote ²³ This practice certainly enhanced the drama and overall entertainment value of a trial, and some lawyers became famous for their talent in this area.Footnote ²⁴ What seems notable about many of the examples from this era is that sarcasm and ridicule appear to have been very effective methods, even when used in ways that did nothing to help reveal the truth. A notorious and frequently cited example involves Thomas Erskine, one of the first lawyers to make a name for himself by doing this kind of work. Baron Campbell claimed, in his autobiography, to have been present at a trial for payment of a tailor’s bill, where Erskine questioned a witness who testified that a coat had been poorly made, with one sleeve longer than the other. Erskine went over the point carefully, asking the witness, “You will swear that one of the sleeves was longer than the other?” When the witness affirmed this, Erskine asked, “Now, sir, will you swear that one of them was not shorter than the other?” The confused witness denied the point, and, according to Campbell, Erskine won the case for his client.Footnote ²⁵

This story would seem to confirm all the fears of the antirhetorical and the antitheatrical critics. The implication is that people attend trials for entertainment, and are delighted to see a quick-witted lawyer tie the witness up in knots and trick him into producing an answer the lawyer wants to hear, so that he becomes a kind of puppet in the lawyer’s ministrations. The result is not a statement that anyone could seriously regard as helping to clarify the issues or expose the truth. It doesn’t show the witness to be a liar, but the pleasure of seeing him become a tool in the lawyer’s hands is so satisfying that it is treated as a successful performance and the lawyer is rewarded with a victory. If juries are actually making decisions on this basis, then it seems right to worry that cross-examination has simply become one more device that lawyers are using to entertain, amuse, and animate the audience, and that this device belongs to the same dynamic structure that critics were worrying about centuries earlier. One can easily imagine the critics of the early modern period now adding that cross-examination has become another feature of the lawyers’ scripted performances, which affects not only the verdict but also the community’s expectations. To be sure, there is good reason to think that exposing laypersons to scenes of cross-examination changed their ideas about truth in almost the opposite direction, leading people to demand a kind of consistency and legal-rational “common sense” that few people display in their ordinary affairs. However, if one were of a mind to see this practice as an element in the legal theatre of the era, it would not be hard to find examples to justify that concern.

Although guides on cross-examination started to appear around the turn of the nineteenth century, it would take many decades before a comprehensive and systematic discussion appeared. Guides to legal rhetoric had long recommended that lawyers should avoid affectation, strive for dignity, and modulate their tone and language harmoniously.Footnote ²⁶ Gilbert Austin’s Chironomia; or, A Treatise on Rhetorical Delivery (1806), published around the time that cross-examination was becoming a more prominent part of the trial, was not focused solely on forensic rhetoric, but if offers advice along the lines of its precursors, warning that extravagance, vehemence, and exaggerated gesticulations all serve to degrade the speaker and the audience.Footnote ²⁷ Austin’s treatment is unusually explicit about the theatrical model that applies to all public speakers and their need to engage with the audience, and to that extent his discussion anticipates some of the suggestions that later commentators would offer.

The first extensive treatment with specific recommendations for cross-examining witnesses was Edward William Cox’s The Advocate: His Training, Practice, Rights and Duties. This work first appeared serially in the Law Times in the early 1830s and was published as a two-volume book in 1852.Footnote ²⁸ In discussing the right approach to cross-examination, Cox writes,

It will be evident that Cox’s ideas about how to handle a witness are very different from the illustration provided by the Erskine anecdote, and they involve a very different understanding of the lawyer’s role as an actor. Here there is no question of putting on an act in order to get a rise out of the witness, or to stir the audience; rather, Cox offers a lesson about controlling one’s reactions to keep others from anticipating the goal. His treatment points to different implications for the dynamic mode of audience interaction – it would be a mistake to conclude that he is simply trying to remove that element altogether, but his suggestion that lawyers should proceed in a gentle and mild way points to a diminished role for the kind of interaction that concerned the early modern critics of theatrical lawyering.

But there is nevertheless at least one other theatrical angle to the dynamic that Cox envisions, which turns on the result of this kind and gentle procedure: “By slow approaches, bring him back to the main circumstances, by the investigation of which it is that you purpose to show the falsity of the story.” The great evidence scholar John Henry Wigmore wrote that cross-examination is efficacious because when “the cross-examined witness supplies his own refutation” in testimony that “immediately succeeds in time the direct examination,” the result produces what he calls a “dramatic contrast.”Footnote ³⁰ Wigmore explains that the difference between refutation in this fashion, as compared to refutation by means of another witness, “is the difference between slow-burning sulphurous gunpowder and quick-flashing dynamite.” Wigmore has at this point switched metaphors and abandoned the theatrical language, but the language of dynamite hints at a plotter hoist with his own petard, itself a theatrical image that speaks to the pleasure the audience experiences when narrative causation turns on itself to bring off a satisfying conclusion. Cox’s treatment and Wigmore’s observations show how cross-examination can facilitate qualitatively different interactions with the audience in the courtroom, which do not closely match the ones that worried the critics in the early modern period, but which nevertheless depend on some of the ideas about theatricality that Peters explores.

7.3 Special Guest Star, John Roberts

Peters’s treatment of histrionic lawyers hints at yet another line of research, involving judges as actors. Judges cannot engage in the same theatrics as lawyers, but that does not foreclose any chance of donning a role during a hearing. There has been a considerable amount of research on the effects of laughter during hearings before the US Supreme Court, but although this work has looked into matters such as what kinds of parties tend to bear the brunt of judicial humor, and whether male or female judges are likelier to attempt this approach and are likelier to be seen as crowd-pleasers, scholars have largely overlooked a prior question – namely how judges go about eliciting laughter from the audience in the first place.Footnote ³¹ By this I do not mean to ask whether certain areas (e.g., administrative law or criminal law) offer more opportunities for guffaws, or whether judicial humor necessarily takes a form that treats a particular person as its target, although both questions are relevant. Rather, I mean to ask how judges signal that they have turned momentarily to stand-up comedy, and more specifically what kinds of personae they assume to show the audience that it has permission to laugh.

A recently argued case, Colorado v. Counterman,Footnote ³² offers a useful illustration of the dynamics of judicial humor and the laughter it strives to elicit. The case posed the question of whether it is constitutionally permissible to use an objective standard for imposing criminal liability on someone for stalking and uttering threats, or whether some degree of subjective mens rea is required under the First Amendment because the speech is sufficiently expressive as to require constitutional protection. Billy Ray Counterman had been sentenced to four and a half years in prison for stalking Coles Whalen, a singer-songwriter, and for using Facebook to send hundreds of messages to her. The messages ranged from the mundane (as when he offered to bring tomatoes from his garden) to the aggressive (as when he wrote “Die. Don’t need you,” and “I’m currently unsupervised. I know, it freaks me out too.”).Footnote ³³ His conviction was based on a Colorado statute that used an objective standard to determine whether his messages were threatening, but he contended that he could not be convicted unless he had some degree of subjective awareness – at least to the point of recklessness – that his messages might be perceived as threats.

In the course of two years Counterman had sent Whalen more than a thousand messages. At oral argument, Chief Justice John Roberts picked out a few that, in his view, did not appear threatening. To make this point, he read these examples aloud and asked Philip Weiser, the attorney general for the state of Colorado, to explain why someone who sent them must be perceived as uttering a threat. In reading these messages, Roberts courted the laughter of his audience, presenting himself as a confused and befuddled “regular guy” who could not understand why his words could be construed as anything but innocuous.Footnote ³⁴ He dwelt, for instance, on a message that said, “Staying in cyber life is going to kill you. Come out for coffee. You have my number.” After quoting this example a second time, Roberts added, “I can’t promise I haven’t said that,” and when this remark brought the laughter he was seeking, he read the message a third time. Roberts claimed to find it incomprehensible that anyone could attach a threatening implication to the message, even if it had come amidst hundreds of others that appeared more menacing: “I think that might sound solicitous of the person’s development. I mean, if we’re talking just about what the statements are, how is that – what tone would you use in saying that that would make it threatening?” When Weiser attempted to explain how, in the context of Counterman’s other messages, this one also amounted to a threat, Roberts could not resist another attempt: “Okay. Say this in a threatening way. One of the things he was convicted of, it was an image of liquor bottles, and there was a caption, ‘A guy’s version of edible arrangements.’” Once again, this clever riposte brought down the house. One may speculate that Roberts’ pose, informed by an awareness of those who would later hear the recording, was also designed to convey a certain self-image to the like-minded people in that audience.

It would be idle to imagine any of these messages being spoken “in a threatening way,” since they were sent by text. The invitation to adopt a threatening tone might almost seem like a disavowal of Roberts’s own highly theatrical conduct at this point in the hearing. It is more than a little paradoxical for him to adopt the stance of an average dude, doing his best to comprehend a woman’s point of view but forced to throw up his hands in exasperation because he simply cannot understand what she is going on about. First and most obviously, if Roberts were right to interpret the message as “solicitous of the person’s development,” there would be nothing wrong with using the objective standard he claims to find so worrisome, since it would yield the innocuous meaning he has just produced. Second, and conversely, the figure he has been purporting to impersonate would be most unlikely to explain himself in Roberts’s words. That average dude does not use words like “solicitous,” and if he were concerned about someone’s “development” he would just say so. By attributing to Counterman a “solicitous” attitude toward Whalen’s “development,” Roberts inadvertently highlights the contrived nature of the role he is enacting. He is attempting to speak in Supreme Court legalese while also treating the sentiments of the plain Joe as perfectly congruent with the Court’s jurisprudence on objectivity. What makes Roberts’s act even more notably theatrical, however, is his effort to play the role of a befuddled guy who is honestly trying to do his best, a role that Roberts dons in the hope of getting a rise out of the audience. He seeks that affirmation because it will show that he is not alone in his perplexity, that the other well-meaning, like-minded guys out there share his view. If it were not obvious enough that Roberts’s first try was meant to produce this reaction and the reaffirmation it brings, it quickly becomes evident that he finds the response so reassuring that he must try again and again. His act speaks louder than the words he intones.

This example shows how judicial behavior, despite all the constraints imposed on it, may have its own theatrical potential. In the process of attempting to understand a party’s arguments, or contemplating their implications, judges often imagine themselves into the role of someone governed by the provisions in question. That is, in effect, what Roberts seeks to do here. When remarking, “I can’t promise I haven’t said that,” he aligns himself with the hapless defendant now astonished to find that an innocuous statement provides the basis for a criminal prosecution. When inviting the attorney general of Colorado to read a test message “in a threatening way,” Roberts strives for another encore from the audience, while placing himself in the role of someone who cannot fathom how anyone could perceive the message as a threat. Criticisms of judicial humor generally focus on inappropriate levity in written decisions rather than statements uttered in court, and even when commentators have discussed judges’ behavior on the bench, it is usually taken for granted that questions about interpretation and policy are beyond the reach of any such criticism. Yet Roberts’s questions illustrate a practice that, if not commonplace, is hardly unusual.

As Peters shows, concerns about legal performance have attended primarily to lawyers’ behavior, but her analysis shows how judicial behavior might raise similar questions. At the Counterman hearing, Roberts very deliberately seeks to get a rise out of the audience in a way that is meant to affirm the doctrinal point he seeks to establish. More generally, Peters’s attention to the audience for legal performances, and her extensive historical analyses of these questions, open up many new avenues for research.

In June 2019, the Almeida Theatre in London premiered an adaptation of The Hunt directed by Rupert Goold and adapted by David Farr from Thomas Vinterberg and Tobias Lindholm’s Danish film, Jagten or The Hunt.Footnote ¹ The stage version recreates the film’s plot and focuses on the repercussions that befall kindergarten schoolteacher Lucas Bruun, falsely accused of sexual abuse by six-year-old Clara, the daughter of his best friend. Clara has a crush on Lucas and is upset when he rebuffs her affection. She subsequently suggests to her principal that Lucas had exposed himself to her. Her classmates corroborate her story by adding imaginative and salacious details of their own. The play examines how the accusation galvanizes the close-knit community in a small Danish town and targets the accused. Reversing our associations with predation and hunting, the play depicts how the force of sex panic stirs up primal hunting impulses and incites the townsfolk to mobilize against the threat of pedophilia.

The Hunt focuses on the hunting down of a man falsely accused of pedophilia, and highlights public reactivity to sex panics, especially in relation to children. In the wake of the accusation, Lucas’s professional and personal life unravels: He loses his job, his friendship with the girl’s father crumbles, and his burgeoning romance with a coworker comes to a standstill. The effects of this accusation radiate beyond Lucas; they upset his son who lives with his ex-wife. The community’s punitive shaming goads vigilantes who assault him, vandalize his house, and even kill his dog. Eventually, Lucas is proven innocent and acquitted, and reintegrated within the community.

Es Devlin’s scenic design amplifies the sense of confinement, ostracism, and fragility that ripples through the plot. An exquisitely minimalist and elegant glass house is mounted stage center, its base rotating and exposing the actors, trapped inside, from all sides. The glass carapace heightens an intense sense of exposure, even vulnerability. This glass house is the setting for the school, a church, a courtyard, and a lodge in the woods. Various rituals of masculinity play out within its precincts: Men drink and sing, hunt, and fight in ways that symbolically reinforce masculinist discourses of security regimes and protectionism. The lighting and sound design further enhance the sense of precariousness captured in the scenic design. The close bonds of community may well be imagined like the glass house – at once the work of beauty but also a stultifying enclosure. Carefully choreographed scenes display the increasingly belligerent community hunting down Lucas. An enigmatic antlered stag appears fleetingly within the glass box and reinforces a sense of hunted prey, while also conveying the machismo that undergirds vigilante justice. In Hunt, the prey is Lucas, and the hunter is the community.

The play provoked strong responses in the audience, coming on the heels of the #MeToo movement; some audience members were chafed that the play explores in great empathic complexity the horror experienced by someone falsely accused of sexual abuse, even as similarly compelling accounts of sexual survivors seemed scant.Footnote ² For others, its taut storytelling and elegant visual design combined to make for a powerful evening of theatre. Critic Mark Shenton applauded the play for its “churning unease,” and described it as a “gripping, unsettling evening – not easy to watch, but impossible to look away from.”Footnote ³

To an audience that never doubts the protagonist’s innocence, The Hunt offers the moral certitudes of comfort, closure, and even catharsis. The townspeople recognize their folly. Innocence, it suggests, is not the exclusive property of children.Footnote ⁴ Lucas is vindicated and enfolded again in the warm, if stifling, embrace of community.Footnote ⁵ Indeed, the dramatic narrative of The Hunt unfolds along the lines of what anthropologist Victor Turner describes as “social drama”: The false accusation of sexual abuse instigates a breach in the fabric of a tight-knit Danish community. The breach widens into a crisis, fueled by sex panic, which sets off vigilante justice. Ultimately, the police investigation concludes that the allegation is false, and the story closes on the image of a reintegrated community, which appears, like the glass house, at once solid and fragile.Footnote ⁶ The breach is redressed but leaves its trace: In the final scene, a shooter takes aim at Lucas; the bullet misses him and grazes past his head. Still hunted, still prey, Lucas remains vulnerable to vigilantes unconvinced of his innocence.

In her authoritative study Law as Performance, Julie Stone Peters reminds us, “No one living in the age of late modern mass media – when moving images have taken over the public sphere and brought the courtroom into the palms of our hands – would now say that law takes ‘[n]ihil ex scenâ’: “nothing from the theatre.”Footnote ⁷ This is especially borne out in the cultural politics of criminal law. Political theatre saturates criminal law, and mainstream media play an integral role in relaying and consolidating pernicious narratives of heightened crime. The politicization of crime is mediated through culture, exaggerating fears over criminality and normalizing ever more draconian penalties. The media-fueled specter of sexual threats to children has resulted in the formation of some of the most severe laws against sex offenders. The repetition of this cultural imagery normalized state and public violence toward “sexual predators,” repeatedly cast as nonhuman outlaws.

Evoking animal imagery, medieval English law casts the outlaw as “caput lupinum,” a concept that signifies “the head of the wolf.” In the famous thirteenth-century text of jurisprudence, De Legibus et Consuetudinibus Anglioe, Henry of Bracton writes, “An outlaw also forfeits everything connected with the peace, for from the time he is outlawed he bears the wolf ’s head, so that he may be slain by anyone with impunity, especially if he resists or takes to fight so that his arrest is difficult.”Footnote ⁸ Decreed via legal fiat, the performative speech act singles out the felon as one who may be legally killed as if they were a predatory wolf. Developing this trope of the wolf-man or werewolf as the outlaw, Giorgio Agamben points out:

Shuttling between animal and person, the sex offender is an exemplary outlaw figure, banned from the precincts of civility, consigned to the outskirts of the city and lurking in the shadows. Situating the felon outside the zone and protection of the law, such a decree sanctions community vengeance. As homo sacer, connoting bare life, the law exposes the felon to the wrath of the community. The sex offender stokes an imaginal reservoir and emerges as a hybrid beast, a felon bearing the head of a wolf, and a creature that may be killed with impunity. Jonathan Simon reminds us that “sex offenders are our modern-day monsters, producing tidal waves of public demand.”Footnote ¹⁰ As if presaging a sense of unease and menace, the sex offender hovers between animality and monstrosity, itself a word that draws from “monstrum” for portents, and derives from the verb “monere,” which suggests to warn or foretell. Viewed simultaneously as beast, monster, and specter, connoting an animal appetite and shadowy pervasiveness, the sex offender is imagined outside the bounds of personhood.Footnote ¹¹

On the other side of the spectrum, the performative force of “the victimized child” legitimates severe punitive sanctions. The white child is the exemplary figure of vulnerability and summons our protective impulses. As community members aver in The Hunt, “The happiness of our children is everything. Our hopes and dreams rest in these tiny souls.”Footnote ¹² If, for Lauren Berlant, the “infantile citizen” indexes the increasing privatization of civic life, then for Lee Edelman the child remains “the perpetual horizon of every acknowledged politics, the fantasmatic beneficiary of every political intervention.”Footnote ¹³ Any notion of utopian political projects is securely fastened on the child, the paradigmatic figure of futurity. The vulnerability of the child marshals the guardian trope within national culture, while simultaneously legitimating harsh penalties for pedophiles and sex offenders.

While the discursive construction of vulnerable subjects enables paternalistic discourses and legitimizes brutal state reprisals, it is also critical to consider how the law itself exacerbates the vulnerability of those accused. How might thinking with vulnerability as a heuristic allow us to consider both the survivor’s exposure to interpersonal and systemic violence as well as the sex offender’s exposure to carceral state violence and their social abjection from society? The vulnerability of our social relations makes us susceptible to interpersonal, community, and state violence. Can avowing vulnerability as the shared social terrain that risks wounding unsettle the criminal law binarism that pits vulnerable victims against monstrous offenders? This chapter considers how shaming practices inflicted by the community and the state, in particular, expose and exacerbate the vulnerability of the offender. In the face of such harsh shaming practices, I examine the offender’s strategies of psychic management, that range from self-loathing to internalized vigilantism. I consider how vulnerability is politicized but can also offer resources to reimagine the social contract and move us toward more just and humane models of accountability and redress.

The figure of the innocent child, the paradigmatic victim par excellence, evokes powerful protectionist impulses and summons all the resources of the masculinist state. Absorbing and refracting the contradictory discursive and symbolic functions of male social dominance, masculinist state power works through diffuse and multiple channels, drawing on and disseminating the ideologies of the heteronormative family unit. The emergent protectionist discourses acquired a new intensity in the 1980s and legitimated harsher penalties. In the wake of the disappearance of Etan Patz in 1979, and the subsequent emergence of moral panics that surrounded discourses around “missing children,” the sex offender came under greater scrutiny.Footnote ¹⁴ The anxiety around the sex offender, of course, emerged much earlier and impacted shifting gender relations in the political and legal imaginary.

John D’Emilio and Estelle Freedman’s pathbreaking scholarship has traced the historical shifts from the nineteenth century emphasis on policing female sexuality to concerns surrounding social and sexual hygiene to a modern preoccupation with controlling male violence.Footnote ¹⁵ Channeling male lust toward procreative sexuality maintained the ideal of female purity, while also upholding heterosexual patriarchy. However, when sexual mores for women loosened, the sex regulators needed a new figure to police, and the sexual psychopath stepped into this vacuum, allowing a new site for the regulation of sexual behavior. The simultaneous emergence of the sexual psychopath in the 1930s in media, legal, and populist discourses offered a new rationale to crack down on sex offenders, a capacious category that included perverts, homosexuals, and minor offenders. In Freedman’s words,

The affective and political power of childhood vulnerability legitimated heightened criminal penalties for those accused of sex crimes. Roger Lancaster points out how sex panics are “less about the protection of children than about the preservation of adult fantasies of childhood as a time of sexual innocence[;] sex panics give rise to bloated imaginings of risk, inflated conceptions of harm, and loose definitions of sex.”Footnote ¹⁷ Drawing on Freedman’s work, Lancaster locates the emergence and circulation of sex panics in the 1930s just as the Southern lynch law went into decline. While execution or incarceration emerged as the primary solutions to contain rapacious black criminality, white sex offenders were deemed sick and confined to mental institutions under sexual psychopath laws. Lancaster points out that white and vigilante citizens’ and parents’ associations that came into being during the sex panics of the Depression and McCarthy era demonstrated the increasing ways in which citizen demands were articulated in a register of victimhood, thus normalizing and cementing the role of the state as the protector of vulnerable citizens.

It is no surprise then that laws too have been formed in the very names of children. The new laws since the 1990s imposed ever more punitive penalties and restrictions on sex offenders in prison and after release. These penalties often flow into the coffers of the police, court, and criminal legal system, thus offering incentives to continue to expand the scope of the carceral state. This victims’ rights’ movements coincide with what Malcolm Feeley and Jonathan Simon call the “new penology,” which focuses on managing aggregates of dangerous groups and high-risk “populations” rather than rehabilitating individuals to community norms.Footnote ¹⁸ Chrysanthi Leon reinforces this point in her study where she argues that risk assessment and control, psychological and biological surveillance are increasingly the norms rather than treatment or prevention.Footnote ¹⁹ Meanwhile, numerous studies show that “sex offenders have among the lowest same crime recidivism rates of any category of offender.”Footnote ²⁰ Indeed, as Corey Rayburn Yung has pointed out, “particular myths of extremely high recidivism rates and ‘stranger danger’ have largely served to support various restrictions on sex offenders as well as substantiate court opinions upholding those restrictions.”Footnote ²¹

The sheer heterogeneity of criminal acts that the term “sex offender” encompasses itself is striking: It includes rape, indecent exposure, public urination, possession of child pornography, voyeurism, production or distribution of obscenity, bestiality, solicitation of a prostitute, statutory rape, distribution of child pornography, “sexting” by teenagers, incest, and lower degrees of sexual assault, including groping. Pointing out the “sex offender exceptionalism,” Corey Rayburn Yung notes:

The image of the vulnerable child provides powerful grist for the mill, sutures “family values” onto the state, and perpetuates the trope of the family as the microcosm of the nation. In the process, the electorate itself is feminized, imagined as vulnerable, and requiring the masculinist protection of the state. The ever more stringent laws around sex offenders trigger a mimetic rivalry of muscular nationalism between liberals and conservatives. The feminized public that emerges as the beneficiary of law and order is not a prediscursive category; rather sex panics retroactively constitute this public. An addressable object is conjured into being in order to enable the very discourse that gives it existence.Footnote ²³ Hence “the public” that is at the receiving end of information about endangered children is not a pregiven, a priori collective but rather a discursively constituted category that is constructed through cultural narratives around crime. This rhetorically constituted public then legitimates punitive policies and rewards politicians who politicize crime.

Turning the trope on its head, The Hunt focuses on the suffering and vulnerability of the accused. The play reveals how an accusation of sexual assault can devastate one’s physical and mental well-being, while also exploring its repercussions on loved ones and its corrosive impact on community relations. In allowing the audience to empathize with someone falsely accused, the film solicits our compassion for Lucas. But how might our reaction shift if the accused was not innocent like Lucas, but indeed guilty of sex crimes against children? Would we be able to retain a sense of moral complexity when the certitudes offered in The Hunt are muddied? What if instead of the catharsis and closure that The Hunt provides we are left with feelings of ambiguity, or even disgust?

The structural antagonism of criminal law offers competing notions about who constitutes the victim in scenes of criminal offending: the individual harmed by a particular crime or the accused who may also be a victim of larger systemic marginalization and structural deprivation. For the prosecution, the accused is an autonomous, agential legal subject, who must take responsibility for their actions; for the defense, the victimization of the accused remains unacknowledged, subjected as they often are to larger systemic disadvantages. These accounts provide images of the accused that oscillate between subjecthood and subjection, evoking earlier debates around individual agency versus social determinism. Eschewing these binary formulations allows us to consider how legal actors are constituted in and through relations of power: Social subjection is the ground for the emergence of legal subjecthood.

While studies have pointed out the victim/offender binary often overlaps or exists in a continuum, with those who harm likely to have been harmed themselves, prevailing criminal law continues to perpetuate a binary model.Footnote ²⁴ The antagonism that structures criminal law saturates cultural responses, eclipsing other avenues for redress and repair. Addressing sexual violence does not require draconian penalties; conversely, addressing carceral expansion does not necessitate minimizing sexual violence: this is a false choice.Footnote ²⁵ A more capacious notion of justice that is committed to decarceration, while allowing a path toward accountability and healing can simultaneously dismantle the adversarial topology of criminal law.

Thinking with vulnerability as a heuristic moves us beyond the antinomies enshrined in criminal law. While tropes of vulnerability are mobilized to justify paternalistic state coercion of individuals and groups, vulnerability is also a powerful reminder of the interdependence and mutuality of humans. Centering vulnerability may allow us to rethink the foundations of our social contract in ways that acknowledge both our precariousness and the sovereign violence that holds us in its thrall. It allows us to highlight the lack of systemic and structural support that produces precarity in the first place. It provides a larger contextual framework where we can examine the socioeconomic environments of precarity that encourage risk-taking behaviors. It allows us to undo pernicious and pervasive social structures of racism and misogyny. Thinking with vulnerability affirms relational personhood.

Political theorists as early as Thomas Hobbes writing in 1651 emphasize that the corporeal vulnerability of the political subject necessitates a powerful state. The vulnerable political subject joins membership in a rationally devised political body, which grants protection through its awesome power. The threat to corporeal vulnerability is mitigated and overcome through recourse to a “common power” of the “body politique.” By consenting to the sovereign power of the formidable state, the diffident subjects secure their mortal safety and material well-being. An overpowering Leviathan state restrains citizens in several ways: Diffident subjects would check their own capacity for criminal offending for fear of the consequences of an absolute sovereign power; the citizens would cede to the state their desire for vengeance and have the state act on their behalf.

The foundations of criminal law are inextricably entwined with the mobilization, circulation, and curation of fear of the Leviathan state. By instilling fear, the sovereign deters criminal behavior and fosters peace and security. To regulate social relations within society, the sovereign defines what is socially acceptable behavior; such norms do not exist a priori in a state of nature. The state then enforces these artificial norms. Hobbes suggests that criminals who are punished by the state have consented to this punishment, indeed, “authorized” it. In this way, the state reinscribes the vulnerability of citizens.

If for Hobbes human vulnerability is the precondition that legitimates a powerful carceral state, for Emmanuel Levinas, vulnerability heightens our awareness of the intersubjective constitution of our subjectivity. Preceding our entry into language, this intersubjective, embodied encounter with others ensures that the trace of another is constitutive of the self. Levinasian intersubjectivity pervades the dynamic between actors in scenarios of sexual harm. The sensory flesh memory of another remains long past the event, reminding us that the event has not ended, but rather continues to exert its hold upon us in subtle and powerful ways. The malaise that arises from the scene of sexual harm leaves its lingering trace as a precognitive flesh memory, an intense and affective vulnerability. The face-to-face encounter with another opens us up to vulnerability, while also soliciting our sense of responsibility, as a prereflective opening of an embodied intersubjective self.

Contra the Leviathan state’s invulnerable image that induces awe and diffidence in its citizens, the avowal of vulnerability amongst the citizens allows us to conceive of personhood itself as porous, susceptible to identification, and composed of the traces of our social relations. In the domain of legal theory, Martha Albertson Fineman reminds us that vulnerability is not “a substitute term for weakness or disadvantage, … but rather calls into focus what we share as human beings, what we should expect of the laws and the underlying social structures, and relationships that organize society and affect the lives of everyone within society.”Footnote ²⁶ Developing this insight into the arena of political assembly, Judith Butler has recuperated vulnerability as political action and explored its possibility to generate ethical obligations. Vulnerability is not only an invariable feature of social relations, but also gestures a broader condition of interdependency, which changes the dominant ontological understanding of the embodied subject.Footnote ²⁷ Rather than think of vulnerability and resistance as antonyms, or as a propensity that disables agency, Butler forwards vulnerability as an agentic mode of political action.Footnote ²⁸ These scholars highlight that the analytical paradigm of vulnerability foregrounds our interdependency within social institutions and the need for a public response for our shared vulnerability, especially when increasingly neoliberal policies attenuate the role of social supports for individuals in society.

While cultural productions have played a large role in perpetuating and cementing binary models of good victims and evil perpetrators, a closer look at perpetrators reveals that many are themselves victims who have endured suffering. The prevailing binary models of criminal law fail to capture the complex and shifting subjective terrain of those who commit crimes. While much mainstream media reinforces these binaries, we do see some alternative depictions that bring us into proximity with criminalized people we may not otherwise encounter in life, and indeed, we may deliberately avoid. These more nuanced scenes of proximity with sex offenders portray their vulnerability and their subsequent strategies of psychic management as they grapple with the punitive shaming and “civil torture” from law enforcement and community members.Footnote ²⁹

Steven Fechter’s play The Woodsman, which opened at The Actor’s Studio in New York in 2000, provides an example of a more complex portrait of a sex offender. The play urges us to see the frailty of both survivors and perpetrators under sovereign power and centers vulnerability in the scenario of sexual harm. A modern-day allegory of the story of Little Red Riding Hood, The Woodsman portrays the protagonist, Walter, as both the wolf and the huntsman. Activating the tropes of both animal and savior, the play explores Walter’s struggle to reform his darkest impulses. The play draws on the symbolic and psychic reverberations of the medieval English legal concept of the “caput lupinum” or the felon with a wolf’s head, an outlaw pariah whose exposure makes him vulnerable to attacks by anyone in the community. The play suggests both the permanent relegation of sex offenders to the category of the outlaw, while also illuminating social practices that prolong perpetual punishment and interminable reprisals.

Released on parole, after serving twelve years in prison for sexually molesting young girls, Walter struggles to cope with life after imprisonment. He is a skilled craftsman who makes furniture. Upon his release, he finds employment at a lumberyard, where he meets and befriends Vickie, a woman with her own experience of childhood sexual abuse at the hands of her brothers. The play unfurls the psychic tapestry of Walter’s subjectivity and allows us to see the friction between his social identity as sex offender and his personal identification with the savior figure. The dramatic agon between his identity and his identification propels this narrative, and the audience is presented with a sympathetic and complex portrayal of a sex offender.

Nicole Kassell’s 2004 film version casts Kevin Bacon in the lead role as Walter, and he portrays with acuity and depth the psychic turmoil of a self-loathing pedophile desperate to escape his own desires. Both play and film versions enable audience proximity to the character of a sex offender. In allowing us to get close, The Woodsman widens the aperture through which we typically view sex offenders. The play fosters an attentiveness that invites us to suspend censure, engender curiosity, and affirm the humanity and personhood of sex offenders, typically imagined as monsters, specters, or animals.

The Woodsman probes the deep and enduring impact of sexual violence and how it transfigures the lives of victims as well as perpetrators. It gestures toward the loss of agency and disorientation experienced by survivors, betrayed by those entrusted with their care. The play delineates the subjectivity of Walter in ways that exceed the bounded autonomous and individual subject of criminal law. By accentuating Walter’s vulnerability, the play urges audiences to consider his complex, shifting, and processual subjectivity, and his struggle to change.

Walter’s sexual subjectivity is shaped by the primal scene of taking afternoon naps with his sister when he was six and she was four years old. The memory of her fragrant hair both soothes and arouses him. He carries that tenderness and desire into his adult relationship with Vickie, but a darker impulse of that memory triggers his predation of young girls. His self-loathing prompts him to remake himself in the figure of the savior. In this endeavor, he switches between the roles of the police, the father figure, and the vigilante.

The Woodsman portrays Walter’s subjectivity as composed of numerous traces: He is at once wolf and huntsman, perpetrator and police. When Carlos, his brother-in-law, talks about his fondness for his daughter, Walter discerns a remnant of his own pedophilic desire. Carlos reminisces about bathing his daughter, “I remember when she was a little thing and I’d give her baths. I’d hold her wet little body in my hands and think, can anything be more perfect? She’s the light of my life.” Walter warns and pleads simultaneously, “Don’t love her too much, Carlos.”Footnote ³⁰ Walter sexualizes this interaction between father and daughter. Perhaps the description triggers some pedophilic desire in him. He shares his concerns regarding Carlos’s behavior to the state-mandated psychotherapist, Rosen, “Carlos has a thing for his daughter, and if he isn’t careful, he’s going to suffer.” Likewise, Walter identifies with the brothers of his girlfriend Vickie who confesses that she was “poked around … here and there.” Frustrating Walter’s and the audience’s expectation of resentment or hostility, she says simply, “I love all of them. They are strong, gentle men with families of their own. And if you ask them about what they did to me, they’d call you a liar and then beat the shit out of you.”Footnote ³¹ While Walter activates the stereotype of “stranger danger,” the play suggests that sexual abuse is a far more familiar and familial occurrence, happening both within the home and beyond.Footnote ³² Walter also identifies with “Candy,” the man who hovers around shiftily outside a boys’ school.Footnote ³³ He recognizes something of his own rituals of seduction in the movements and patterns of Candy, a name he coins that serves as synecdoche for both person and thing, bait and lure. Acting as a vigilante, while exorcising his own demons, Walter suspects Candy of molesting schoolboys and eventually beats him up. Each of these identifications with real and imagined child molesters also gives rise to its obverse – the savior figure who wants to rescue his niece, his girlfriend, and the schoolboys.

If identity works through a logic of exclusion, demarcating boundaries between self and other, us and them, then identification blurs them.Footnote ³⁴ In identifying with others, the porous self both projects onto others and assimilates others into the self. The substitutions and proxies that are set in motion through numerous identifications allow Walter to dodge and evade the fixity of the identity category of “sex offender,” a fixity reinforced through shaming punishments such as parole and the sex offender registry.Footnote ³⁵ Seeing himself in a plethora of other characters allows Walter to project onto others his “deviance” and normalize his own sense of abjection. In doing so, he unsettles the coherence and stability of the punitive category of sex offender. His grasping stabs at vigilantism are attempts to flee himself, but tearing himself away from this identity proves difficult. Yearning for a self-sufficiency that eludes the stigmatized, Walter turns his self-loathing and vengeance toward Candy, his doppelganger.

Shame dramatizes the inescapable vulnerability of the self: Interlining the boundary between the body and society, shame exposes one’s vulnerability.Footnote ³⁶ The Woodsman explores the power and limits of shame as a technology of punishment, and especially of self-punishment.Footnote ³⁷ Formal shaming exists as an ubiquitous tool in the arsenal of criminal sanctions, and “exploits, in a particularly dramatic and explicit fashion, the assumed link between people’s sense of shame and their tendency to observe legal norms.”Footnote ³⁸ Moreover, shame sanctions function as a form of officially sponsored lynch justice that legitimate mob violence.Footnote ³⁹ Not only do shaming punishments harm the offender’s dignity, they also incite demagogic politics, especially when imposed on sex offenders. The effect of these shaming punishments is to stigmatize incarcerated people, who begin to see themselves as damaged and incomplete persons.Footnote ⁴⁰

The Woodsman depicts the interpellative role of the police in installing a sense of shame and self-aversion in Walter. Sergeant Lucas thwarts Walter’s attempts at reform and reinscribes his abject status as a social pariah. He lashes out at Walter:

Rather than prohibiting his predation, the shaming revives the predator. Walter begins his hunt again. An unnerving scene in an urban park follows. Walter frequents the park and may be stalking a diligent eleven-year-old birdwatcher, Robin. It is a fragile scene. Robin is an alert, self-possessed, and thoughtful girl. Walter warms up to her, compliments her, and then asks if she would like to sit on his lap. She is startled, declines politely, then hesitates, not wanting to offend him. He touches her shoulder, then her hair. Her body registers her uneasiness: She closes her eyes, she shudders, she keeps up her nervous chatter. When Walter tries to convince her to go with him to a more secluded part of the park, she blurts out, “My daddy lets me sit on his lap.” The words have an unsettling effect on Walter, as he hesitates and shuttles between his role as predator and protector.

Walter intuits immediately that her father “asks” her to sit on her lap rather than “lets” her sit on his lap. There is a pause. According to the stage directions, “her answer has a strange effect on Walter, as if for a moment he lost his balance. Carefully, he sits down and stares at his hands.”Footnote ⁴² The pause resounds in the auditorium, and the audience lingers in this suspended moment. Walter is thrown by her response and loses his sense of footing. Will the minor jolt interrupt Walter’s seduction ritual, his programmed pattern of abuse? Walter follows up with an onslaught of questions: Are you two alone when he asks you? Does he touch you? Does he say strange things? Does he move his legs in a funny way? In response, Robin simply drops her head down and sobs quietly. Walter is increasingly more agitated, he fumbles, changes tack, and shifts from the role of predator to protector. In a breathless series of questions, he asks:

The narrative rupture begins with Robin’s “No” to his sexual advances and ends with Walter’s “No” to Robin’s attempt to please him. The scene unfolds in this negative space as Robin deflects, skirts, and dodges Walter’s advances. The compressed and stultifying mood initiated by the first “No” begins to unwind and soften with the second “No.” The tense atmosphere lifts and the audience collectively experiences an affective shift, a surge of relief. This brief, unnerving scene traces Walter’s shifting subject positions as he morphs from parolee to predator to protector, while also tracking Robin’s tentative turn from a definitive “No” to Walter’s advances to a coerced, less certain “Maybe.” The scene tracks the displacement and unmooring of both characters. It suggests her acquiescing to please Walter by relenting to his demands.

Rather than pit perpetrator against victim in the stark binaries of criminal law, the tableau urges us to see what Levinas calls “the internal antagonism” within these characters.Footnote ⁴⁴ Both characters struggle with their inner antagonism, and the scene is saturated with foreboding and a sense of shame. The loss of self-possession is acute in moments when the offender violates Robin’s sense of safety in her own sexual subjectivity. This scene portrays the malleable and shifting subjectivity of the sex offender and the potential for change and transformation even in pedophiles, while also revealing the shifting contours of consent, revealing its internal contradictions where conciliation coincides with a desire for sexual autonomy.

Levinas suggests that shame is “the representation we form of ourselves as diminished beings with which we are pained to identify. Yet shame’s whole intensity, everything it contains that stings us, consists precisely in our inability not to identify with this being who is already foreign to us and whose motives for acting we can no longer comprehend.”Footnote ⁴⁵ Shame transfixes Walter; its tentacles claw their way into his subjectivity. His stabs at vigilantism offer a way for him to overcome shame’s intensity. His restless oscillation from his roles as parolee to predator to protector agitates against the stigmatizing category of the “sex offender.” Yet “the necessity of fleeing, in order to hide oneself, is put in check by the impossibility of fleeing oneself,” Levinas reminds us. “What appears in shame is thus precisely the fact of being riveted to oneself, the radical impossibility of fleeing oneself to hide from oneself, the unalterably binding presence of the I to itself.”Footnote ⁴⁶ It is at this conjuncture of fixity and fleeing, of attachment and escape that we need to locate the friction between identity and identification. The identity of “sex offender” is a permanent scarlet letter that interpellates Walter, and his grasping identifications with the role of the protector attempt to escape this label. Whereas identity is predicated on the logic of exclusion, differentiating the sex offender from the rest of society, and develops its self-concept through a process of negation and contrast, identification lays bare the vulnerability and openness of the self. Walter’s shame grounds him, even as he attempts to flee that immobility by projecting and throwing himself on to other characters.

Although Fechter’s focus is very much on Walter, the portrayal of Robin makes vivid her fortitude and vulnerability. She is in the woods to watch the birds. She arrives with her binoculars and notebook in hand, in which she has recorded the names of sixty-seven birds that she has identified. When she sees Walter there, her approach is direct and uninhibited. She rebuffs his cliché line about her being pretty but is drawn in when he analogizes that “Most people only notice birds with the brightest colors.”Footnote ⁴⁷ Robin’s visceral uneasiness is palpable as Walter begins with verbal then physical overtures. Something is familiar in this scenario; the traumatic repetition returns her to the primal and sordid scene of filial disillusionment. Walter figures as a mimetic proxy, a site of potential attachment, but also a menacing trigger of traumatic memory. While Walter sees in Robin a beautiful solitary vireo, a singular and hardy bird that sings sweet, slow songs, she sees her father in Walter, both the promise of that figure and its betrayal.

Stimulated by that memory and its lingering hold on her present, Robin’s self-possession and composure come undone. When pressed with Walter’s insistent questions, she is wordless. How to shape into words, give form and coherence to an assault that left her unmoored, shaken, and dispossessed? How to escape this temporally layered scene of assault, its sedimented history, and its repeated incursions into memory? How to overcome this simultaneous impossibility of wanting to flee while remaining riveted to oneself? Robin begins to sob. The unsettling scene of malaise encloses and smothers in an ever-tightening circle that Robin both returns to and attempts to flee.

Robin’s vulnerability in turn solicits something from Walter. He responds to her inaudible petition, switches from his sexual advances to more protective gestures. Her inarticulate address summons in him a guardian figure, and he instructs her on how to secure her own safety. Oscillating between uncertainty and suspicion, only partially in possession of their own motives and desires, infiltrated by the presence of real and spectral others, these characters elude the binary categories of criminal law. The Woodsman is replete with specters, doubles, and doppelgangers in scenes where characters waver, shuttle, and oscillate between subject positions. It offers images of shifting and shifty persons, in media res, still in various stages of arrested formation. The flat polarities of criminal law that divides into victims and perpetrators and elicits pity or vengeance cannot accommodate the internal antagonism of these characters. These scenes of desultory agency and displaced vigilantism layer disappointment over love, betrayal over affection and exceed the binary language of criminal law.

While in David Farr’s The Hunt catharsis ensues from the vindication of an innocent man falsely accused of child molestation, The Woodsman does not offer any such sense of closure. The ending is not redemptive, but rather points to how shaming operates in scenarios of punitive sanction. Walter manages his psychic disquiet by internalizing the vigilante and receives social approval for it. He channels and redirects his sexual energies from predation to vigilantism and develops new techniques of self-governance. If The Hunt unfurls a Turneresque paradigm of social drama that culminates in reintegration, such cathartic closure eludes The Woodsman. Rather The Woodsman suggests that sex offenders inhabit a zone of indistinction between the human and the animal, between the city and its shadowy outskirts, making it impossible for them to reintegrate into society. The play urges us to look beyond the theatre and toward the larger social and legal contexts that continue to hunt down registered sex offenders as predatory wolves in society. Scorned as outlaws, and designated as unreformable, sex offenders bear a wolf-head that licenses carceral, legal, and social violence against them. They are homo sacer, decreed by law to exist outside the protections of law. The spatial and social abjection prevents them from reintegrating into society and ironically makes communities less safe.

While criminal law attempts to redress the vulnerability and harm experienced by survivors, it also inflicts penalties and exacerbates the vulnerability of those who cause harm. Thinking with vulnerability as an analytic category attunes our moral and political obligations to each other, and foregrounds the sense of exposure, injuriousness, and mutuality. These plays allow us to see the vulnerability of those who cause harm, while also highlighting the extreme reprisals from community and institutional retribution that dehumanizes sex offenders.

As restorative justice practitioner and assault survivor Danielle Sered reminds us, “We will not work our way out of violence if we continue to believe that solving violence is about managing monsters. Displacing our old stories will require allowing new ones – full stories, messy ones, ones that include wounds and rage and loss and sorrow and ambivalence and – sometimes, though not always – hope.”Footnote ⁴⁸ The Hunt and The Woodsman underline the relational dynamics of encounters that move us beyond the autonomous, boundaried liberal subject of rights that is enshrined in criminal law. Shining a light on real and imagined pedophiles, these plays allow us to see the vulnerability of offenders and their exposure to state and community harm. Moving away from the strident polarities of criminal law, these portrayals depict those harmed and those who harm not as fixed and immutable, but charting a shared social terrain of vulnerability. The arena of criminal law encompasses complex subjects, both acting and acted upon, oscillating between subjecthood and subjection, susceptible to interpersonal, community, and institutional violence.