On Sex, Criminal Procedure, and Interpreting Colonial Prosecutions

The paper I delivered at the ASE make a methodological argument for approaching criminal prosecutions of sex crimes in the early-modern Spanish empire. The nature of criminal prosecution in the early modern Spanish legal system hinged upon two significant elements, regardless of the nature of the crime– the assumed guilt of the accused, and the concentration of investigatory, prosecutorial, and adjudicating authority in the singular office of the magistrate. As with other legal acts in the Spanish system, this concentration of authority was tempered by a labyrinthine legal corpus and a complex of overlapping, competing jurisdictions that countervailing parties could bring to bear on one another. In the initiation of a case, however, the discursive limits of the prosecutorial moment were established by the first act of denunciation/accusation, which set the terms of guilt by which the magistrate would proceed.

I argued in the paper for a means to substantiate popular sexual practices that often operated contrary to prescriptive norms of the disciplinary moment of the criminal prosecution, and of the teachings of the church. I argued that methodologically this dual context, of the peculiarities of jurisdiction and of judicial procedure, provides a framework for approaching criminal prosecutions of sex in colonial Latin America that opens the possibility of theorizing popular norms of sexuality. Normative sexuality in the colonial Latin American literature has long been defined by and interpreted against the confluence of prescriptive discourses associated with tridentine teachings on sex and marriage and the Mediterranean honor code, which gives preeminence to penetration, or guarding others (women) from penetration, as the gendering prerogative of masculinity. Challenges to this model have emerged in recent contributions to the early-modern Spanish historiography. Alyson Poska has argued that the application of the Mediterranean honor code by early modern Spanish historians, with its emphasis on female fertility as the collective basis of both male and female honor, was overly influenced by their acceptance of normative elite and Catholic Reformation discourses, which she claims “had little resonance among the majority of the Spanish population.” (At least in Galicia). Scott Taylor has argued that, contrary to the model, credit worthiness and fair prices were essential elements of women’s honor in seventeenth-century Castile as evidenced by criminal records of verbal and physical assaults. Modern anthropologists began to jettison the construct two decades ago, critiquing it as a product of Anglo-American imputations of the deviance of Southern Europeans, built upon the ethnographers’ own ethnocentrism and sexism. Sally Cole has noted that the concepts of honor and shame portrayed as the markers of Mediterranean identity bear a striking resemblance to the ideologies propagated by the Catholic Church and the fascist states of Iberia during period in which the foundational anthropological texts were produced. The cumulative impact of the critiques of the dominant honor/shame rubric of masculinity and femininity makes problematic the use of prescriptive normative discourses in assessing lived gender and sexual desire. Prescriptive norms must be contextualized in their institutional roots and interrogated by the tensions presented by the very behaviors they sought to control.*

What does it mean, then, to contextualize norms in their institutional roots? In the case of criminal prosecutions my own tendency, and that of many other social and cultural historians, has been to mine criminal cases for every possible discrete piece of information present in the text- in some ways the more ancillary the better, as witness testimony and litigant petitions often give texture to the daily lives of city barrios. The incidental fact set of a case:

I was walking down a street in the barrio of Santa Barbara, just passing by the tienda of doña Fulana, which is in the house of doña Maria, when I overheard a woman known as la Xarra yelling. She called a gatera [an indigenous woman street-hawker] a thief and homewrecker, picked up a stone from the street and struck her across the head…

for example, would provide information on the specific occurrence of crime as well as aspects of daily life in the parish of Santa Barabara – the presence of woman-owned shops and female-headed houses, the presence of Indian street sellers, the type of insults that arose from specific disputes amongst women or men or both, etc. This is a powerful means of collecting information on social practices that usually avoid the documentary eye, but it is also limited by and embedded in a number of specific tasks that relate to the procedural development of a criminal prosecution. The meaning of the above information changes slightly if its context relates to the investigatory authority of a magistrate who has just asked the speaker, “Did you see Josefa Ramirez, alias La Xarra, call the gatera Thomasa a thief and a homewrecker, and then smash her head with a cobblestone?” The shift may be unimportant in a case of assault, such as this, but may be much more important if the prosecution represents a state intervention into the identification, prosecution, and correction of moral behaviors, as the terms the magistrate choses to frame the criminal act form a part of an institutional discourse aimed at correcting and perfecting judicial subjects. More next time….


*Allyson Poska, “Elusive Virtue: Rethinking the Role of Female Chastity in Early Modern Spain,” Journal of Early Modern History 8:1-2 (January 2004), 136; Scott Taylor, “Credit, Debt, and Honor in Castile, 1600-1650” Journal of Early Modern History 7:1-2 (January 2003), 10-11; Sally Cole, Women of the Praia: Work and Lives in a Portuguese Coastal Community (Princeton: Princeton University Press, 1991), 78-79. 


Associate Professor of Early Latin America Department of History University of Tennessee-Knoxville

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Hacer juicio ú dictamen acerca de alguna cosa... significando que el objeto excita el juicio ú dictamen en la persona que le hace.

Deducir ante el Juez la accion ú derecho que se tiene, ó las excepciones que excluyen la accion contrária.

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Chad Black

I, your humble contributor, am Chad Black. You can also find me on the web here.
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