The New Declaration of Sentiments
By Elizabeth L. SilverJanuary 23, 2024
The following four cases involve women’s rights and the narrative and legal struggles to compel the law to recognize them. The case of Hester Vaughn in 1868 was the original cause célèbre, about a poor woman convicted of infanticide, sentenced to death without as a single woman involved at any phase of the prosecution: judge, jury, or attorneys. Next, the early-20th-century pregnancy and labor case Muller v. Oregon questioned whether women were allowed to work longer hours than men, since, as the case determined, their primary job in life was to make babies. Then, in the not-so-distant 1975 case of Weinberger v. Wiesenfeld, one of Ruth Bader Ginsburg’s earliest cases as an attorney, the narrative perspective flipped, using a man as a plaintiff in a gender equity case in order to argue for women’s rights. And finally, Depp v. Heard (2022), the latest celebrity case broadcast around the world, again reframed the narrative perspective, making the law itself almost superfluous to the story that underscored it.
But how much do we know about the stories behind the cases, and how much does the background really matter? So much of our language of law is created, interpreted, and impacted by, well, origin stories. These four cases, in fact, required the rhetorical tools of narrative storytelling, both in and out of the courtroom, in order to be heard and for change to be made. While each case is indeed different, they share a common DNA: a double helix of storytelling and law, which, when bound together, reveal America.
Hester Vaughn: The Other Scarlet Letter (1868)
A mere 18 years after Nathaniel Hawthorne published The Scarlet Letter (1850), a story about infidelity, love, shame, and oppression, another Hester was being sentenced to death for a crime that originated with a very similar foundational narrative. In 1868, a young woman named Hester Vaughn was found guilty of murder—specifically infanticide—when she was discovered in her apartment in Philadelphia, starving, recently postpartum, and with the cold body of her dead newborn baby. It is unclear exactly when the baby died, or even how, but what was clear was that she was the baby’s mother; she had recently delivered the baby alone and impoverished in a rented room without fire, heat, food, water, or other human contact; and someone in the house heard a scream. She was arrested, tried for murder, found guilty, and sentenced to death by hanging.
At least those are the facts as gleaned from various historical sources, mostly from doctor evaluations, scattered testimony at her trial, newspaper articles, and requests for pardon. What we know of this infamous case—the specifics—is somewhat hazy, but a narrative coheres as such: someone testified that a baby’s scream was heard and that, later, someone else found Vaughn with her dead baby. Someone testified that she requested a box, which was deduced to be for the newborn’s body. Someone else testified that she never told anyone about her pregnancy and had even concealed it while she was renting the room in Philadelphia, alone. A doctor testified that there was evidence of blunt force trauma to the baby’s skull. Vaughn was arrested and tried by an all-male jury, with a male judge and male prosecutors. She used the last of her pennies to hire a defense attorney, who allegedly took her money and never spoke to her again until the trial itself, where he only argued for leniency, not innocence. She was quickly found guilty of murder. The judge said, “Some women must be made an example of,” and then went on to cite an alleged rise in infanticide, without any evidence, before sentencing her to death.
Born in England, Vaughn immigrated to the United States as a teenager to marry her American fiancé. How they met is unclear, but when she arrived, she soon discovered that the man was already married and had another family. Poor, alone, and without family, she took a job as a maid in a home in Philadelphia. While there, a man in the house—either another employee or perhaps a resident or the owner of the home—raped and subsequently impregnated her. Being unmarried and pregnant, Vaughn was quickly fired. She found a single room to rent in a boardinghouse on Girard Avenue in Philadelphia and gave birth on her own. Shortly afterward, she asked for the box, and the rest is a tangle of narratives.
Vaughn’s attorney defended her with minimal passion, arguing: “The prisoner should not be convicted of murder in the first degree, because in the agony and pain she must have suffered, she may have been bereft of all reason.” Another line from his defense: “The death may have been caused by accident, for the prisoner was the only human being who saw the death, and her lips were sealed by law.” This final “seal” is based on the presumption that, at the time, women were not considered competent witnesses, though it appears that Vaughn did testify on her own behalf.
While in prison awaiting execution, Vaughn’s story spread to the growing suffrage movement, specifically catching the attention of famed white feminists Susan B. Anthony and Elizabeth Cady Stanton, who saw in Vaughn’s story a great symbol for their struggle. This was 20 years after the Seneca Falls Convention; 20 years after Stanton’s first public statement demanding the vote for women. While she had indeed shifted public discourse during those two decades, the political needle for women had moved little. In Vaughn, Stanton and Anthony saw a woman who had been “failed” by the system so egregiously that she was sentenced to death by mere virtue of being a woman.
In many ways, Vaughn was the embodiment of the woman wearing a scarlet letter for all to see. She had a baby out of wedlock. She told nobody about the pregnancy, which was uncommon among women who were accused of infanticide, and which supposedly indicated premeditation. Shortly after people in her boardinghouse allegedly heard a scream, she asked for a box for her dead baby without explaining why. Wounds were found on the baby’s head. There seemed to be no question here: she was a murderer.
Stanton and Anthony ran with this narrative, finding Vaughn’s story so evocative that they felt it could lead to incremental change for women as a whole. Had the circumstances been different, Stanton argued—specifically, had Vaughn been a man—the entire narrative would not have occurred as it did: the rape, the expulsion, the homelessness, the birth and death of the child. And it was this narrative that was meant to instill fear in womankind all over: any woman could be the next Hester Vaughn. Stanton wrote a letter in The Revolution, her newspaper, on Vaughn’s behalf:
If that poor child of sorrow is hung, it will be deliberate, downright murder. Her death will be a far more horrible infanticide than was the killing of her child. She is the child of our society and civilization, begotten and born of it, seduced by it, by the judge who pronounced her sentence, by the bar and jury, by the legislature that enacted the law (in which, because a woman, she had no vote or voice), by the church and the pulpit that sanctify the law and deeds […] All these were the joint seducer, and now see if by hanging her, they will also become her murderer.
Devoted to Vaughn’s cause, Stanton and Anthony also called upon their friend, the well-known labor advocate Horace Greeley, to help. While Vaughn sat in prison awaiting execution, these three advocates staged a rally at New York City’s Cooper Institute designed to instill sympathy for Vaughn’s plight (and, of course, the plight of womankind all over). The campaign worked. The governor granted a pardon, and instead of hanging Vaughn, she was deported back to her native England. Little else is known about Vaughn, what happened to her when she returned to England, or what actually happened on that fateful day in Philadelphia.
For 20 years, Stanton, Anthony, and their fellow suffragists and abolitionists had been fighting for suffrage; for 20 years, they’d been fighting for divorce and for representation on juries and for property ownership—a version of gender equality they would never see in their lifetimes. Whether they cared about her personally or not, Vaughn’s story was, in their minds, a tragic tale that couldn’t have been written better for their cause. After all, the very fact that no women were on her jury helped Stanton persuade the governor that the outcome might have been different had they been allowed to serve and judge.
But according to Sarah Barringer Gordon, in her 2002 essay “Law and Everyday Death: Infanticide and the Backlash Against Women’s Rights After the Civil War,” the story is not quite so straightforward, and the activists may have hurt their cause in the long term:
The reality, of course, is […] unrecoverable, perhaps unknowable at the time. And certainly both sides used Hester Vaughn as a talking point, a label, rather than as a genuine subject. Vaughn’s victimhood or criminal agency was translated into the moral accountability of all women, and the symbol of the worth of woman’s rights activism. The ambiguities of her case remain unresolved—was her pregnancy the result of a consensual liaison, or rape? Did her newborn baby die after its head was deliberately and repeatedly smashed against a bedpost, or did Vaughn faint, as she later claimed, and “overlie” the baby? How many days after its birth did the child die? Did Vaughn receive a fair trial, or was her case bungled by a lazy lawyer and a corrupt criminal justice system inherently biased against women? Did Vaughn “freely confess her guilt” to the governor of Pennsylvania the week after her conviction, as reported later in the New York Tribune, or did she “steadfastly maintain her innocence,” as suffragists claimed?
The lack of resolution to these questions left Vaughn’s case open to interpretation and exploitation on both sides. Nevertheless, Stanton and Anthony focused on the narrative elements of storytelling outside the law—after the law, in fact—to create an even playing field within the law for Vaughn. The legal proceedings did not sufficiently work for her, as she was never the intended recipient of its protections, and so at the end of the day, with the governor’s pardon, the external narrative determined the true legal ending to her story.
Muller v. Oregon (1908)
In 1905, Emma Gotcher was a young factory worker in Portland, Oregon, putting in long hours in a laundromat, cleaning clothes, steaming them, and literally rinsing and repeating. Gotcher and her husband, Edward Elmer Gotcher of the Shirtwaist and Laundry Workers’ Union, spent their days enmeshed in manual labor and early labor-union formation, trying to help their fellow workers secure greater protections. Edward Gotcher was allowed to work long hours, sometimes up to 13 hours a day, earning a larger wage that could help the couple moving forward. Emma Gotcher was also interested in earning more money, and having greater control over her financial welfare and independence. The law at the time, however, was restrictive. Women were considered “protected individuals,” and therefore only allowed to work up to 10 hours a day. But on the 24th anniversary of the first Labor Day (in New York, 1882), not adopted in Oregon until 1887, Curt Muller, the owner of Grand Laundry in Portland, had Emma Gotcher work longer than 10 hours, violating existing state law. In the overtime heard ’round the world, he was fined $10 (about $350 in today’s currency). As a result, he sued the State of Oregon, arguing that women should be allowed to work as long as they liked—a sort of forward-thinking feminist argument that would also allow his laundry to earn more money, and one that would shockingly change the way we view pregnant people in the workplace.
Louis Brandeis, attorney for the State of Oregon (and future Supreme Court justice), argued at the time that women needed special protections because, quite simply, they were different. The “Brandeis Brief,” as it would come to be known, was a new kind of document that cited outside narratives and nonlegal evidence to help a party to a lawsuit. Here, “expert” after “expert” opined on women’s abilities to perform, to work, to be physically fit for the workplace:
Long hours of labor are dangerous for women primarily because of their special physical organization. In structure and function women are differentiated from men. Besides these anatomical and physiological differences, physicians are agreed that women are fundamentally weaker than men in all that makes for endurance: in muscular strength, in nervous energy, in the powers of persistent attention and application. Overwork, therefore, which strains endurance to the utmost, is more disastrous to the health of women than of men, and entails upon them more lasting injury.
The use of this nonlegal brief, this rhetorical device of storytelling of a different form, was so persuasive that Oregon was triumphant at the Supreme Court. The restricted work hours for women were found to be constitutional … at least for another 15 or so years.
In the unanimous opinion, Justice David Brewer stated that “woman has always been dependent upon man” and that “her physical structure and a proper discharge of her maternal functions […] justify legislation to protect her from the greed, as well as the passion, of man.” Since “healthy mothers are essential to vigorous offspring, the physical wellbeing of [women in general] becomes an object of public interest […] in order to preserve the strength and vigor of the race.”
Certainly, no person today would so explicitly make such statements as were made in the 1908 “Brandeis Brief,” nor use the language in its majority opinion, but the artifacts of these words cast larger shadows on how we view, for example, pregnancy in the workplace, parental leave, domestic violence, and abortion. Much of the “data” included in the appellate record essentially codified female weakness by embedding it in the common law, leading directly to a gendered workplace, a problem with which we still contend today. And yet, at the time, this case was controversial as it was seen paradoxically to both help and harm women. It provided women with some protections, while simultaneously putting them in a protected class.
In many ways, pregnancy has been miscategorized ever since, and this does not appear to be changing any time soon. Today, the United States currently has a patchwork of laws sewn together for pregnancy and caregiving that is prohibitively complicated. Each state follows a different system of rules without a cohesive umbrella of protections. Many people do not qualify for sufficient time off and cannot navigate the labyrinthine system that has been cobbled together from Supreme Court precedent, national and state legislation, and public policy, stretching back to General Electric Company v. Gilbert in 1976, in which the introduction of disability insurance as a means to provide protections for pregnancy was explored; to the Pregnancy Discrimination Act of 1978, which outlawed firing women due to pregnancy; to the amendment of the Americans with Disabilities Act in 2008 to include pregnancy and pregnancy-related conditions. Some of these laws are simply ignored by employers, as social bias cannot be so cleanly legislated against, and as a result, many of these “protections,” as they are described, wind up failing, in large part due to categorization.
We don’t need to look too far in our own world to see how the DNA of Muller has saturated our current narrative of law and policy with respect to pregnancy. Even in 1908, this was foreshadowed as a concern by Clara Bewick Colby, the editor of the Portland-based Woman’s Tribune, who wrote that “[t]he State has no right to lay any disability upon woman as an individual.” This was one of the first times that the word disability was applied specifically to women in the same breath as pregnancy, and it would be not be the last.
Weinberger v. Wiesenfeld (1975)
Stephen Wiesenfeld was a young groom in New Jersey who married the love of his life, Paula Polatschek, in 1970. Two years later, Polatschek’s belly swelled, rounded with life and possibility. A high school math teacher, she loved her work and her family, and together with Wiesenfeld, they made a plan for her to return to the classroom after she gave birth. After all, it was Polatschek who had the regular paycheck, it was she who paid the taxes, and it was she who would get summers off while still earning money. Wiesenfeld, on the other hand, was doing home consulting for a computer business. This was the early 1970s, when computers were still boxy robots that had not yet infiltrated daily life, a far cry from the portable Microsoft and Apple models of the 1980s. As a result, the couple decided that he should stay home with the baby.
As with many new couples, the months leading up to the birth were filled with joy and anxiety, excitement and the unknown, and limitless plans. But when Polatschek gave birth, she never came home. She died of an amniotic embolism, a rare complication of childbirth, and Wiesenfeld was left bereft, alone, grieving, and caring for his brand new baby boy, Jason, without a regular income, without a plan. Once on his feet again, he visited the Social Security office to get widower’s benefits, as Paula had been paying into the system during her years as a teacher.
But those benefits were designed only for widows—women whose husbands had died—not for widowers whose wives died. Sorry, he was told. Denied. So, Wiesenfeld sued.
In 1972, Sandra Day O’Connor was a state senator in Arizona, Ruth Bader Ginsburg was founding the ACLU Women’s Rights Project, Sonia Sotomayor was just entering Princeton, Elena Kagan was petitioning her Orthodox synagogue’s rabbi to allow her to have a bat mitzvah, Ketanji Brown Jackson was a toddler, and Amy Coney Barrett had just been born. At that time, women were still not even permitted to open up a credit card in their own names. It would be another year (with the decision in Roe v. Wade) before abortion was legalized, another two years (with the passage of the Equal Credit Opportunity Act) before women could establish credit separate from their husbands, and another six years (with the Pregnancy Discrimination Act) before discrimination against pregnant women was outlawed.
It was Ginsburg, at the time a young attorney, who took on Wiesenfeld’s case and brought it all the way to the Supreme Court. She argued two central claims: 1) that men should be allowed to be full-time caregivers, and 2) that taking away a widower’s—that is, a man’s rights—also takes away women’s rights (or the other way around, however you choose to view it). Ginsburg knew her audience in court: nine men, eight of them white. She knew that proving how unequal a law was for men would also demonstrate how unequal it was for women—and this ultimately would help both genders in the long term. As Ginsburg argued, men absolutely can be nurturing, as was the plaintiff in Weinberger v. Wiesenfeld, thus attributing traditionally “feminine” qualities to male plaintiffs. The way she told that story shifted the perspective for the audience at hand. Just as Stanton and Anthony had viewed Hester Vaughn as a symbol for their cause, so too did Ginsburg see in Stephen Wiesenfeld a figure who could be used to tell a larger story. And it worked, resulting in a unanimous opinion in favor of the plaintiff.
Depp v. Heard (2022)
Two movie stars, Johnny Depp and Amber Heard, met on a film set in 2009 and fell in love. One was much more famous than the other, richer than the other, and much older than the other, at 46 and 23 respectively. The couple began dating around 2012 and married in 2015. There was a year of tumult, of arguments, of paparazzi trying to capture the intimate workings of their glamorous lives; a year of plane flights and movie premieres, photoshoots, and lavish vacations, and then it ended almost as quickly as it began. In May 2016, Heard filed for divorce, alleging that Depp had been physically abusive towards her. Final terms of a divorce settlement were agreed upon in 2017, and the case seemed to be winding to a close.
Then, in December 2018, Heard wrote an op-ed in The Washington Post speaking about her experience of domestic violence. In response, in February 2019, Depp sued her for defamation claiming that what she had written was false, that she had published it with malicious intent, and that the defamatory claims had been damaging to his reputation and career. In August 2020, Heard countersued, arguing that Depp’s very claim had, in fact, defamed her.
What came next was a public trial for all the world to see—to mock, to belittle, to empathize, to aggrandize, and, eventually, to take sides. There were photos of bruised eyes and severed fingertips, stories of profound misogyny, of defecation, and much more. The demeanor of the parties was of particular note, with a tone of joviality marking Depp’s testimony and desperation informing Heard’s. And ultimately, there was a verdict, finding that Depp had proven three counts of alleged defamation (and was awarded $15 million in damages) while Heard had proven one (and was awarded $2 million).
In 1868 during the Hester Vaughn trial, newspapers were the best mode of communication, and Elizabeth Cady Stanton and Horace Greeley employed them fully to reframe their story to help Vaughn. By 1908 and Muller v. Oregon, the Brandeis Brief introduced outside nonlegal material into legal consideration, and then in 1972 for Weinberger v. Wiesenfeld, the cases were recorded on audio. By the 1990s, celebrity cases had taken over the nation on TV, radio, think pieces, and the 24-hour news cycle. Celebrity lawyers were made in how they told their stories, not just for what the story was. Phrases tossed around the courtroom, such as “If the glove fits, you must acquit,” made their way into pop culture. Then, in 2018, Christine Blasey Ford testified against Judge (now Supreme Court Justice) Brett Kavanaugh. Her testimony changed little in law, but everything in life. Though it was not a court of law, it was a court of public opinion that listened to her and empathized with her, even if, at the end of the day, it ultimately did nothing to change the vote, which is where the movies stars entered the narrative.
Cameras are typically only allowed in courtrooms at the discretion of the judge, who, in Depp v. Heard, signed an order permitting them. With this single decision, she changed the audience and potentially changed the outcome of the case. Suddenly, the story being told was not just for the jury—it became fodder for public consumption, a performance put on by two actors whose profession consists of convincing others that their pretend play is real, that their personal story is more believable than another’s.
While the verdict split the liability between the parties, that is not the narrative that came out of the trial. Instead, the media called it a win for Depp. A New York Times story bore the headline “Johnny Depp Jury Finds That Amber Heard Defamed Him in Op-Ed,” with the subheading, “The jury in Virginia found that Ms. Heard had damaged her ex-husband’s reputation with an op-ed in which she identified herself as a ‘public figure representing domestic abuse.’” Buried in the middle of the article was the rest of the narrative, the full story with additional narrative slant: “Ms. Heard did not seem buoyed by the fact that the jury also awarded her $2 million in damages, agreeing that she had been defamed in one instance by a lawyer for Mr. Depp.”
What does Depp v. Heard teach us about how storytelling works within the law, specifically when looking at how women and marginalized people’s stories are told? In a “he said, she said” scenario featuring expert storytellers, one allegedly better than the other, and the weight of 200 years of legal history favoring one kind of narrator over another, it is unsurprising which party would win. The ghosts of Hester Vaughn and Emma Gotcher, and those of so many other cases never given the spotlight of history, are alive in Depp v. Heard, if only we would see and hear them.
So, how many years of building narrative foundation does it take to tell a different legal story? This final case, because it took over the media for so long, matters because it illustrates just how much the tools of rhetoric have been perverted over the centuries to favor the defaulted individual in power. Even though skillful advocates have worked for over a century to make a dent in that bias, we are still far from a level legal playing field. Without innovative storytelling, the old narrative, with its long-standing, well-cemented presumptions, will continue to hold sway.
Featured image: Jay Van Everen. Abstraction (also) Lady in Abstract, ca. 1921; reworked ca. 1923–26. Gift of Mrs. Jay Van Everen to the Collection Société Anonyme. Yale University Art Gallery (1948.294). CC0. Accessed January 4, 2024.
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