The Medico-Legalization of Sex in the Nineteenth-Century United States
Keywords:
medical jurisprudence, common law, expert witnesses, lay witnesses, epistemic power, legal fact of sex, sex classification, medical expertsAbstract
The rising field of medical jurisprudence in common law from late eighteenth century has led to a rearrangement of authority and epistemic power between lay and expert witnesses, in favor of the latter. Although the law had long relied on testimony from members of the community to establish the legal fact of a person's sex, the legal procedure of fact-making started to rely instead on the opinions of doctors, surgeons, and medical practitioners. This article closely reads medical jurisprudence books, U.S. case law, and U.S. newspapers from the nineteenth century to describe this expansion of medical experts’ authority to establish the legal fact of sex in vague cases. The article describes the spread of medico-legal technics of sex classification in three arenas of U.S. law: the law of marriage and divorce, cross-dressing, and defamation. The practice of legal sex classification was thus absorbed into medical expertise, and the meaning of sex in the law transformed from a socio-physical construct to a medical one. The mid-nineteenth-century decline of medical jurisprudence subsequently pushed the practice of sex classification outside the realm of law and into the jurisdiction of the medical profession, thus leaving sex classification mainly to doctors.
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A note on terminology: except for when I quote directly from historical texts, I tried to use either neutral pronouns (the person/prisoner/name) or inclusive ones (s/he, they, their, etc.).
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“Francis Thomas.”
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“A Freak of Nature.”
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Levinz, 233.
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128
Joseph Chitty, A Practical Treatise on Medical Jurisprudence Microform (Philadelphia: Carey, Lea & Blanchard, 1836), 377.
129
Chitty, A Practical Treatise, 377. This was cited by other medical jurisprudence books, particularly by Alfred Swaine Taylor, e.g., see Alfred Swaine Taylor, A Manual of Medical Jurisprudence (London: J. Churchill, 1844), 621; Alfred Swaine Taylor, Medical Jurisprudence (Philadelphia: Lea & Blanchard, 1861), 497; Alfred Swaine Taylor, A Manual of Medical Jurisprudence (London: J. & A. Churchill, 1879), 636.
130
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131
Mohr, Doctors and the Law, 37.
132
Malone v. Stewart from 1846 (reported in George W. McCook et al., Ohio Reports, Official Series Reports of cases in the Supreme Court of Ohio 321 [1853]).
133
Daston and Park, “Hermaphrodites in Renaissance France,” 6.
134
Krzanich, “Virtue and Vindication,” 33–37.
135
Krzanich, “Virtue and Vindication,” 321
136
Penelope Pether, “Sex, Lies and Defamation: The Bush Lawyer of Wessex,” Law and Literature 6 (1994): 182; Diane L. Borden, “Reputational Assault: A Critical and Historical Analysis of Gender and the Law of Defamation,” Journalism & Mass Communication Quarterly 75 (1998): 98–111; L. R. Pruitt, “‘On the Chastity of Women All Property in the World Depends’: Injury From Sexual Slander in the Nineteenth Century,” Indiana Law Journal 78 (2003): 965–1018; Krzanich, “Virtue and Vindication,” 33–34.
137
Dreger, Hermaphrodites, 60.
138
See, e.g., Cooper, Tracks on Medical Jurisprudence, 83–84.
139
Mohr, Doctors and the Law, 71.
140
See, e.g., Palmer, “Two Hermaphrodite Sisters,” American Journal of Obstetrics & Diseases of Women & Children 13 (1880): 174; Charles W. Allen, “Report of a Case of Psycho-Sexual Hermaphroditism,” Medical Records 51 (1897): 653.
141
Golan, Laws of Men, 54.
142
Mohr, Doctors and the Law, 102–5; Stanford E. Chaillé, Origin and Progress of Medical Jurisprudence (Philadelphia: Collins, 1876), 413–15.
143
Golan, Laws of Men, 54.
144
See Mnookin, Jennifer L., “Idealizing Science and Demonizing Experts: An Intellectual History of Expert Evidence Symposium: Expertise in the Courtroom: Scientists and Wizards—Panel One: Judges, Evidence and Expertise,” Villanova Law Review 52 (2007): 766Google Scholar.
145
Dean, “Medical Jurisprudence,” 324.
146
Fausto-Sterling, Sexing the Body, 40; Reis, Bodies in Doubt, 62–66.
147
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149
Slayton, R. D., “Evidence—Expert Testimony—The Ultimate-Issue Rule,” Chicago-Kent Law Review 40, no. 2 (1963): 147Google Scholar; “Expert Testimony as an ‘Invasion of The Province of The Jury’,” Iowa Law Review 26 (1941): 819–40.
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