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SECTION I
SEXUALITY AND GENDER
JUDICIAL AUTHORITY AND POPULAR JUSTICE: CRIMES OF PASSION IN FIN-DE-SIECLE PARIS
| By Eliza Earle Ferguson |
University of New Mexico |
| In 1894, a top statistician from the French Ministry of Justice published a report that exposed a shocking increase in the rate of acquittal for cases tried by jury in French assize courts. Emile Yvernès reported that acquittals for serious assault (coups et blessures graves) rose from 27% to 78% between 1860 and 1890, acquittals for murder grew from 15% to 34%, and the rate of acquittal for homicide increased from 16% to 24%. By contrast, acquittals in crimes against property rose only slightly during the same period, from 17% to 19%.1 Like many of his peers, Yvernès was particularly worried by the high rate of acquittal for so-called "crimes of passion" committed between lovers or spouses. He contended that "these misdeeds, often inspired by passion, hate, or vengeance, more and more often find with the jury not only indulgence, but absolution."2 Jurors acquitted criminals, he argued, because they believed the punishments provided by law were too harsh. "If these negative verdicts from the jury were always founded on the real absence of guilt of the presumed authors of the crimes," Yvernès observed, "we could perhaps congratulate ourselves for meeting so many innocent men and we would have nothing to do but to deplore the lack of clairvoyance of the judicial investigation." But the truth of the matter must not be hidden, he wrote. "The moment has come to put an end to arbitrary [judgment] and to fictions," he declared, "verything by the law and nothing but by the law."3 |
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Yvernès was right: the seemingly erratic verdicts of the juries meant that the law was not applied equitably to all defendants. But what can account for this high rate of acquittal? If it was not the law that held sway in jury trials for crimes of passion, what was it? If the jurors were merely incompetent, as Yvernès and many of his contemporaries believed, then it would be reasonable to expect their incompetence to manifest itself in all kinds of cases. Yet it was only in cases of crimes against persons, not against property, or even the legally more complex cases of fraud and libel tried in the assize court, that frequent acquittals occurred. If jurors were subverting the system, they did so in predictable and consistent ways. This suggests that in their decisions jurors applied standards regarding the use of violence other than those dictated by the law. Indeed, a close analysis of trial dossiers in cases of intimate violence reveals that juries' verdicts were by no means capricious, but instead coincided with the implicit judgments of guilt or innocence articulated in witnesses' testimony given during the trial. |
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I contend that the processes of criminal investigation and trial worked to privilege the stories, knowledge, and judgment of the witnesses and defendants in the assize court, and thus effectively facilitated the transfer of a popular system of retributive justice into the verdict of the court. Unlike the utilitarian state system of justice, this popular system of retributive justice was personal and subjective. It validated the use of violence in disputes between domestic partners where violence was used to punish a previous wrong: the reciprocal exchange of harm commensurate with harm. The perplexing issue of acquittals in the fin-de-siècle assize court was nothing less than the failure of the state system of justice to displace a popular system of justice. Rather than grafting an alien code of behavior onto an acquiescent population, the state system was co-opted by the people for their own purposes. |
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