“A Jury of her Peers” and the Dilemma of Difference

Women Juries for Women Criminals

Women Juries for Women Criminals. John T. McCutcheon, 1914 (Photo: Chicago Tribune)

Susan Glaspell, a wildly popular author between the world wars, published more than fifty short stories, nine novels, fourteen plays, and one biography. Her career as a playwright began in 1916, when she joined with her husband and young Eugene O’Neill to found the Provincetown Players, America’s first repertory theatre company dedicated to producing work by innovative American playwrights. Glaspell wrote a dozen plays for the company and won the Pulitzer Prize for drama in 1931.

With one exception, however, her work had been largely forgotten when she died in 1948. Instead, she won her place in American history by demonstrating that sexual differences matter, that women could not protect themselves from abusive husbands unless they could sit on juries. Glaspell’s 1917 prize-winning short story, “A Jury of her Peers,” gave American women popular and persuasive arguments for their right to serve on juries and for their struggle to end women’s powerlessness.

Glaspell’s story, which takes place before the law permitted women jurors, focuses on the differences in the way women and men perceive and judge a woman’s alleged murder of her husband. Two women, wives of the prosecutor and sheriff, uncover evidence related to the crime. While the men look upstairs and in the barn for clues that would reveal Minnie’s Wright’s motive, Mrs. Peters and Mrs. Hale discover the apparent motive for the crime in the kitchen. The women find the dead body of Minnie’s canary with its neck snapped. Other evidence – Minnie’s shabby clothes, a bad stove, the lack of a telephone, unfinished household projects – lead them to conclude Minnie suffered a lifetime of emotional abuse from her husband. Acting as a jury of her peers, the two women conceal the dead canary – evidence that would have provided the prosecution with the motive needed to assure a conviction.

The two women acted out of empathy for Minnie’s suffering. They recalled analogous incidents in their own lives. All women, Mrs. Hale remarked, experience male brutality. “We all go through the same things – it’s just a different kind of the same thing.” This shared understanding led the two women in Glaspell’s story to feel morally justified in obstructing justice.

Following passage of the Nineteenth Amendment, most women believed they would automatically be eligible for jury service, as were men who registered to vote. They were wrong. As late as 1943 only twelve states permitted women to serve on juries on the same basis as men. Women who fought for jury service argued that they were entitled to sit on a jury because they were legally equal to men or that women’s differences would improve the quality and fairness of juries. Most men rejected both arguments, insisting that women were not suited intellectually or emotionally for jury service and, if allowed to serve, family, femininity, and the constitutional order itself would be undermined.

The first U.S. Supreme Court test of women’s right to serve as jurors came in Hoyt v. Florida in 1961. Gwendolyn Rogers was seventeen when she married Clarence Hoyt in 1942. It was a rocky marriage, plagued with discord and infidelity. After another late night quarrel, Gwendolyn begged Clarence to help save their marriage. “Don’t bother me,” he shouted. She picked up a baseball bat and with one swing killed him as he lay on the couch. Gwendolyn was arrested and confessed to his murder.

When Hoyt came to trial in 1957, the Florida jury service statute required women to be registered voters and, unlike men, to register with the clerk of the court “her desire to be placed on the jury list.” Nearly 46,000 women were registered voters in Hillsborough County, but only 218 had volunteered for jury service. When a panel of jurors was drawn from a box containing 3,000 men’s names and 35 women’s names, all 60 were men. It took the six-man jury only twenty-five minutes to find Hoyt guilty of second-degree murder.

Hoyt appealed her conviction to the Supreme Court, claiming she had been deprived of her rights under the Sixth and Fourteenth amendments because her jury was drawn from a pool from which women had been excluded. In a line that echoed Glaspell’s story, Hoyt also contended that Florida’s jury statute was discriminatory, because men did “not have the same passions and understanding of females and their feelings as other women would have.” Making use of both these arguments put the defense in the awkward position of arguing the importance of both sameness and difference. The heart of Hoyt’s argument was that she had been denied her right to equal protection, but, at the same time, she insisted that acknowledging women’s differences was crucial to her defense.

The state of Florida easily exploited Hoyt’s dilemma. What Hoyt wanted, the attorney general contended, was not justice, but favoritism. “She has no constitutional right to female friends on the jury,” he stated. “Impartiality is a state of mind. It does not depend upon whether the juror is male, female, black, white, or what have you.”

The Supreme Court unanimously rejected Hoyt’s arguments. Florida’s jury statute did not exclude women, the court said, it merely exempted those who didn’t want to serve. The exemption was not arbitrary, but reasonable, because “despite the enlightened emancipation of women from the restrictions and protections of bygone years,” Justice John M. Harlan wrote, “a woman is still regarded as the center of the home and family life.”

Fourteen years after Gwendolyn Hoyt entered the Women’s Correctional Institution in Ocala, Florida, the Supreme Court changed its position in regard to women jurors. Billy Taylor appealed his conviction for rape on the ground that Louisiana’s “volunteers only” provision for women jurors violated his Sixth Amendment right to a jury drawn from a representative cross-section of the community. “We think, wrote Justice Byron White, “it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male.” For this reason, White added, we cannot “follow the contrary implications of the prior cases, including Hoyt v. Florida.” All-male jury pools were no longer acceptable as representative of a local community.

After the court’s turn-around in Taylor v. Louisiana all American women were eligible for jury service, but feminist scholars still found Glaspell’s story compelling. As late as 1995, “A Jury of her Peers” ranked in the top ten of the most widely assigned books in law school courses in law and literature. One feminist scholar argued that Glaspell had “anticipated the search for feminist consciousness and an informed community of women.” Another depicted Minnie Wright as an “invisible victim” of her husband’s emotional abuse and rationalized her homicidal act as “a response to her silent hell with a crime of silence – strangling her husband in the middle of his sleep.” Some feminists linked Glaspell’s story to the battered woman defense as mitigation in homicide cases, a defense currently admissible in thirty-nine states.

But lawyers for battered women quickly learned that while women jurors brought different interests and experiences to jury service than men, women could not be counted on, as a class, to be sympathetic to battered women. In fact, Elizabeth Schneider, a staff attorney for the Center for Constitutional Rights, says that in her practice she is more likely to find the reverse of the Glaspell story. Some women distance themselves from battered women and some men see it as their duty to protect women. While such a jury composed of people who reflect a variety of viewpoints mute the importance of sexual differences, experience has shown that only a truly diverse jury commands public confidence in the justice of its verdict.

About the Author

Alan Rogers

Alan Rogers teaches U.S. Constitutional and Legal History at Boston College. His recent books include Murder and the Death Penalty in Massachusetts and The Child Cases: How America's Religious Exemption Laws Harm Children. On a sometimes happier note, he is a huge BC football fan.

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