Ariel Dorfman’s “Death and the Maiden” was written 30 years ago about the Chilean regime. While it may seem specific, the play offers thematic elements that aren’t confined to the context of the play and are actually still relevant today. When reading the play, I felt that I had heard the story before, and I had actually seen it twice before reading what I consider the original. As a crime show fan, I’ve watched all of Criminal Minds and a lot of Law and Order SVU. Both shows pride themselves on using relevant topics for their content so I was surprised to realize that a play about Chile written 30 years prior was a basis for episodes from the shows. It proves to me that the topic of survivors finding a place in the law is still very much relevant today.
The Criminal Minds episode “Unknown Subject” is about the BAU team trying to catch a serial rapist, not knowing that one of the former victims had kidnapped a man she believed to be the perpetrator. She believed him to be her attacker because he played a song that had been repeatedly played while she was raped, creating a physical reaction for her. This directly takes an element from “Death and the Maiden” because of the song. She uses a gun and kidnaps him to hear his confession, like Paulina does to Roberto. The discomfort with the situation of the “at home” version of the law is the same as it is in “Death and the Maiden”. The episode makes you uncomfortable because as the man is pleading his case to the survivor, he seems so rational and believable. This is very much like Roberto. He tries to outsmart her by throwing logical alternatives to her belief that he committed the crime. Like Paulina, the survivor is portrayed to be the one that is crazy. She seems overly aggressive and irrational- a contrast to the man who seems to be trying to bring reason in the situation. In Law and Order SVU, “Remember Me/Remember Me Too”, the situation is similar. The kidnapped man who the woman believes the perpetrator is believed. He is thought to be the rational one trying to bring reason into a situation created by the woman who he calls “a crazy bitch”. Because the man is portrayed as the rational one, both episodes are uncomfortable. This leads for me to the question of where the law provides space for survivors, especially female survivors. The reality is that in each of these works, the law does not offer an obvious place for women. So much so that the women believe that it is better to kidnap their alleged abuser rather than turn to the police. These women are angry. The law seems to be actively working against them and believing the perpetrators and so they believe that they have to find justice for themselves. This anger and frustration with the law is misplaced by the women which causes them to be portrayed as crazy and irrational. As discussed in Criminal Minds, the system is a revictimization of these survivors so they create their own system. The law is imperfect here. It does more to serve the perpetrators than it does for the victims so the victims get angry. Their credibility is destroyed with their anger because of how they seem, giving the credibility to the alleged perpetrator they have kidnapped. Even though the two shows were made much later than the play, the fact that they used the premise of the play shows that this topic is still very much an issue today and the law is still not giving survivors the space that they need.
What is interesting about the episodes I watched is that both TV shows have a much stronger resolution that “Death and the Maiden”. In Criminal Minds, the BAU bursts in and convinces the survivor to put down her gun by telling her that the guy she kidnapped isn’t the perp. When he walks outside though, they arrest him for the 12 rapes. The man in Law and Order is also found to be guilty. We don’t get that same resolution or even an answer in “Death and the Maiden” and I think that is often the result of the law. I think the fact that these two modern takes end differently than the play proves that the law is moving more towards finding concrete answers for survivors. Maybe it is going to take a long time still and it is not going to be an easy journey, but the modern versions could be showing a shift in mindset of the people, which could lead to changes in the law. And this change could provide room for survivors in the law- something that each of these works prove is necessary for the success of justice.
Each of the works also prove how important a confession is to the healing of survivors. While they each change elements of the story, especially the endings, all of the survivors on the show want a confession. It is why each of them create their own “trials”. It shows how important the truth is for the law and for the healing of victims. These women need to hear their attackers confess and tell the truth so that they may start their healing process. The space in which they do this is their own because the law does not provide one for them.
Truth Commissions are weird in that their purpose is not to seek justice. While crimes were committed, they are prosecuting people for those crimes. Knowing that there are many paths to reconciliation in circumstances like these, I wonder why South Africa chose to use a Truth Commission. I think that Krog deals with the purpose and effectiveness in the book, focusing on different ideas. If justice isn’t the goal here, then what is? I see a few answers presented in the novel to explain what the goal is for truth commissions.
Narrative: The novel focuses on the importance of stories. One of the operations of the truth commission is to give the survivors a space to tell their stories. It also works to tell the stories of those who aren’t around to tell them. Krog gives herself this job saying, “I snatch you from the death of forgetfulness. I tell your story, complete your ending,” (Krog 38). She also focuses whole chapters like “Truth Is a Woman” on just relaying stories. The truth commission is a place for those affected by the crimes to be heard.
Truth: The most straight-forward and simple answer is that the truth commission is there to find out what actually happened without the threat of prosecution. Krog explains that there is no one version of the truth. The commission can’t define a truth of what happened, but instead it allows people to accept their own version of truth. It presents the stories and creates a system in which people can analyze and understand what they believe to be true.
Reconciliation: This last purpose is the strangest. While the definition, as explained by Krog, is supposed to be restored, that isn’t possible here. Krog says that “there is nothing to go back to, no previous state or relationship one would wish to restore,” (Krog 143). This is because the system has been a broken one. South Africa can’t restore a broken system and the truth commission allows it to move forward rather than reentering the cycle of violence of the system. Krog explains that reconciliation is actually a part of it and it is meant to be more of a transformation- a way to understand the past, not to accept it, and to move forward from that understanding so that this situation doesn’t happen again.
While I think that Krog is making these observations about the purpose, it is even more difficult to understand if this is what the victims want and are getting from the truth commission. For example, Krog talks about the people who are sitting there and listening to the atrocities about capital punishment yet still call for its use. It’s complicated and it’s hard, but South Africa specifically chose a truth commission over other forms of closing and Krog attempts to find out why.
The question that I pose in the title is one that has been left for us in almost all of the readings. We read about what justice does for men (The Furies) and what the law provides for men (Declaration of Independence). What we don’t see is where the law has left room for women. This question is asked in Death and the Maiden and answered in an interesting way. Paulina has been unable to see justice for the horrible crimes committed against her. She shows serious disillusionment with the justice system which leads her to kidnap her abuser to put on her own trial. She sums up her thoughts at the end of the play by asking, “And why does it always have to be people like me who have to sacrifice, why are we always the ones who have to make concessions when something has to be conceded, why always me who has to bite her tongue, why?” (Dorfman 66). Because she knows that the actual commission won’t help her, Paulina tries to invent her own system of justice that still lets her down. I think here she is giving her own answer to the presented question. She says that it’s not as easy as women just being left out of the justice process, but they are the ones to lose the most. Not only is Paulina brutally tortured and raped, but then she has to be labelled as “sick” and irrational. She is lied to by her husband and her rapist who conspire against her. The system of justice that she invents, still finds a way to re-victimize her. I think an interesting and bold claim that Dorfman could be trying to make is that justice is sexist. The plotline features two men conspiring against a survivor of sexual assault who is just trying to heal. Rather than listening and believing her, Gerardo automatically believes the other man in the situation. There is a moment that he believes her, but it still seems that he turns on her. The law, and justice in the law, does not leave room for women so women have to make room for themselves. Still, however, the system is stacked against survivors hiding behind the concept of “innocent until proven guilty” which Gerardo brings up in the play. I think I am ending with even more questions than I began with about the law being sexist. Why do women have to find justice for themselves/why aren’t they believed? Why haven’t we fixed this? Where do we draw the line at innocent until proven guilty?
While reading, I was drawn to do a close reading comparison of the Haitian Constitution and the U.S. Constitution. I am currently in a Constitutional Law class so I couldn’t help but note the differences between the document from Haiti and here. Specifically, the biggest difference is in how the law is presented. One aspect of the United States Constitution that is frustrating in a Con Law class, but I found an appreciation for after reading the Haitian document, is the fluidity of it. The US Constitution is crafted in a vague way, especially in the Bill of Rights. I think that this vagueness and introduced elasticity is actually beneficial for the law. The law in the U.S. Constitution becomes malleable in a way that is still firm, but also open to interpretation. It opens it to changing times and beliefs so that it is not stuck in tradition, but able to move forward with the people. For example, the First Amendment says that “Congress shall make no law establishing religion, or prohibiting the free exercise thereof” which may seem specific, but is not. It brings up the questions of “what is a religion”, “can Congress allot tax money to religious organizations with secular aims”, etc. These are all questions that have answers that can change with the time because the law, in this case, is how it is interpreted. The Haitian Constitution does not have this flexible aspect. It seems that the clauses are very specific. Article Two says that “slavery is abolished forever”. This applies to the list of duties of the government as well. The U.S. Constitution lists vaguely again the roles of each branch of government, but the Haitian Constitution gets specific. Article 15 says that “The Empire is one and indivisible; its territory composed of six military divisions”. I should also note that there are some strangely vague parts like the article about the “good father”, but for the most part, I see this Constitution as something very specific. There is little room there for potential change. I am not here to argue that one is better than the other, but it is interesting that the U.S. Constitution opens the law to change, while the Haitian Constitution sets it more firmly.
The Furies deals with the complexity of the law in the context of wondering if the law is meant to truly be steadfast, or to be flexible. In theory, the law is an equalizer. Every citizen approaches the law on the same level, and the law treats each person the same. It is a black-and-white part of society that is neutral and firm. This is the role that the Furies are trying to fulfill. When they approach Orestes and Apollo, accusing them of the murders, they say that “blood must pay for blood”. This is a familiar concept and purpose of the law- that an “eye for an eye”- but the play shows that this concept is more of an ideal than a practical application of the law. Orestes is an example of how the law is a dynamic work- how it cannot be rigid like the Furies wish it to be. Orestes is charged with the murder of his mother and her lover. It’s complex because his mother killed his father who killed his sister as a sacrifice to the gods in order to be back in their favor. The play doesn’t ask the question if murder is justified, but it does ask if the law is not supposed to account for the circumstances of each situation- and here, each murder presents a new set of ambiguous circumstances. The play answers the question with Orestes being given a trial which ends in a tie, and is acquitted in the murder. The answer itself is still unclear because of the tie, and I see it as a balance between the two answers. The Furies stand for the what the law strives to be in theory, because in the most basic sense, murder is not justified. However, Orestes and Apollo show through their situation that taking that stance is not always easy. The law is imperfect and cannot be truly steadfast and equalizing. I have been thinking about this concept because I know that it is still relevant today. When speaking to a former attorney at work, she told me that it isn’t always as easy as getting the most possible jail time for a crime and that prosecutors have to take into account the circumstances of the situation. I found it incredibly interesting that an idea presented in the play still applies. I think it is a dynamic of the law that people often criticize or just ignore, but it is a part of it that is worth thinking about and understanding.