The Anal Defense

In The Manticore by the great Canadian novelist Robertson Davies, the lawyer narrator recalls one of his early courtroom successes.

My next serious case was a far bigger thing, nothing less than a murderess. Poor woman, she had shot her husband. He was a fanner, known far and wide to be no good and brutal to her and his livestock, but he was decisively dead; she had poked a shotgun through the back window of the privy while he was perched on the seat and blown his head off. She made no denial, and was indeed silent and resigned through all the preliminaries. But they still hanged women in those days, and it was my job to save her from the gallows if I could.

I spent a good deal of time with her and thought so much about the case that Diarmuid began to call me Sir Edward, in reference to Marshall Hall. But one night I had a bright idea, and the next day I put a question to my client and got the answer I expected. When at last the case came to trial I spoke of extenuating circumstances, and at the right moment said that the murdered man had repeatedly beaten his wife in order to make her perform fellatio.

“Know your judge” was one of Diarmuid’s favourite maxims; of course no barrister knows a judge overtly, but most of the Bar know him before he is elevated to the Bench and have some estimate of his temperament. Obviously you don’t take a particularly messy divorce before a Catholic judge, or a drunk who has caused an accident before a teetotal judge, if you can help it. I was lucky in this case because our assize judge that season was Orley Mickley, known to be a first-rate man of the law, but in his private life a pillar of rectitude and a great deplorer of sexual sin. As judges often are, he was innocent of things that lesser people know, and the word fellatio had not come his way.

“I assume that is a medical term, Mr. Staunton,” said he; “will you be good enough to explain it to the court.”

“May I ask your lordship to order the court cleared?” said I; “or if your lordship would call a recess I should be glad to explain the term in your chambers. It is not something that any of us would take pleasure in hearing.”

I was playing it up for all it would stand, and I had an intimation – Dr. von Haller says I have a good measure of intuition – that I was riding the crest of a wave.

The judge cleared the court and asked me to explain to him and the jury what fellatio was. I dragged it out. Oral and lingual caress of the erect male organ until ejaculation is brought about was the way I put it. The jury knew simpler terms for this business, and my delicacy struck them solemn. I did not need to labour the fact that the dead man had been notably dirty: the jury had all seen him. Usually performed by the woman on her knees, I added, and two women jurors straightened up in their chairs. A gross indignity exacted by force; a perversion for which some American states exacted severe penalties; a grim servitude no woman with a spark of self-respect could be expected to endure without cracking.

It worked like a charm. The judge’s charge to the jury was a marvel of controlled indignation; they must find the woman guilty but unless they added a recommendation of clemency his faith in mankind would be shattered. And of course they did so, and the judge gave her a sentence which, with good conduct, would not be more than two or three years. I suppose the poor soul ate better and slept better in the penitentiary than she had ever done in her life.

Jodi Arias and her defense lawyers are trying a similar defense this week, with anal sex the prime indignity in their portrait of the victim as sexual deviant. Next week, the defense promises to play a phone sex recording. Also:

On Wednesday, Arias testified that on Valentine’s Day 2007, Alexander gave her a gift that included boys’ Spider-Man underwear.

Here’s the key distinction for me — not liking the sex is reasonable motive for breaking up with someone, but not reasonable motive for stabbing someone 27 times, slicing their throat ear to ear and shooting them in the face.