‘Impressed’ by Feelings-How Judges Perceive Defendants’ Emotional Expressions in Danish Courtrooms

Abstract

Emotions constitute an integrated part of crime trials, but the evaluation of these emotions is dependent on broader cultural norms rarely addressed by legal practitioners. Previous research on emotions in the judiciary has also tended to underemphasize this cultural dimension of judges’ assessment of defendants’ emotional expressions. This article presents an ethnographic study of Danish judges’ considerations when they encounter defendants in court and get an impression of their behaviour, emotional state and physical appearance. Combining theories about emotions with intersectionality approaches, the article highlights the processes in which social categories are dynamically shaped through emotions. Judges’ assessments of emotions are mediated through their own cultural understandings, and what counts as ‘appropriate’ emotion is dependent on how the defendant is culturally and systemically situated.

Keywords

Courts embodiment emotion intersectionality theory judges social categorization

Introduction

While the role of emotions in crime trials is still only ambivalently addressed by Western criminal courts, one finds increasing research on judges’ and juries’ handling of emotions in the courtroom (Bandes, 1999; Little, 2002). Particularly well researched are issues of judges’ empathy (Bandes, 2009; Nussbaum, 1996) and the role of remorse in sentencing (Weisman, 2014). Methodologically, most of this research has analysed judicial decisions, particularly looking for ‘cues embedded in written opinions’ (Maroney, 2006: 132). Other research studies have gathered data about the importance of defendants’ emotions for juror sympathy (Eisenberg et al., 1997–1998; Lynch and Haney, 2015; Sundby, 1997–1998); and judges’ self-perception as professionals dealing with emotions in the judiciary (Bergman Blix and Wettergren, 2016; Roach Anleu and Mack, 2005). These inquiries provide new insights into juror perspectives and judges’ professional identity and handling of own and others’ emotions. Still, there is very limited qualitative research on how cultural expectations influence judges’ assessment of defendants’ emotional expressions during court hearings.

Taking this point further, the present article analyses how Danish judges assess defendants’ emotions in the courtroom, and argues that this evaluation of emotions from defendants’ utterances, facial expressions or bodily posture relies on a range of factors and biases (Rachlinski et al., 2013) and implicit cultural expectations (Bandes and Blumenthal, 2012).

Based on three qualitative fieldwork projects conducted between 2007 and 2014, I gained insight into Danish judges’ evaluation of defendants’ emotional expressions, and how judges to some extent found these emotions legally relevant in relation to sentencing (Johansen, 2015).¹ The observed cases were minor violence cases. Often, the act of violence was so minor that it could potentially – but not automatically – lead to a suspended sentence, and hence great emphasis was placed on the explanations and emotional reactions of the defendant in the courtroom. Defendants’ emotional behaviour constituted an important source for judges to establish what ‘kind’ of defendant they were facing in each case, and by extension what decision-making options would be relevant. By focusing on judges’ perceptions and categorizations, however, I deliberately do not consider whether a specific defendant really ‘had’ or even expressed emotions during a specific case.

The analysis focuses on the moments when defendant and judge were facing each other during the interrogation of the defendant in the courtroom, and when the defendant was sitting beside the defence attorney. Judges paid attention to defendants’ explanations of emotions surrounding the criminal act and their present stance towards it; they also noted how defendants sat on their chair, and to what extent they looked the judge straight in the eyes. Thus, judges’ evaluation of defendants rested on language as well as non-verbal behaviour, implying the interconnectedness of a linguistic and an embodied emotional expression (Harding and Pribram, 2009).

After presenting the analytical framework as well as the ethnographic study and its Danish context, the first part of the analysis describes how judges link between the offence, the defendants’ emotional expressions, and their possible future behaviour. I show that verbal expressions of emotions are expected by judges at certain, delimited times during the trial, whereas defendants’ bodily attitudes are open for interpretation during the whole trial. The second part of the article focuses on the ways in which judges’ interpretation of these emotions is filtered through their own expectations about gendered and cultural emotion. In the conclusion, I raise issues for further research.

‘Emotions’ in Legal Contexts

As noted by Susan Bandes (1999: 8–10), emotion theory constitutes a complex, interdisciplinary field, resulting in a lack of definition of emotion. Although there is a general agreement that emotions form an integral part of decision-making in law (Bandes and Blumenthal, 2012), there is less consensus as to the boundaries or even connections between concepts such as emotions, language, body and cognition (Finkel and Parrott, 2006; Mulligan and Scherer, 2012).² These debates suggest that the analysis of empirical data as presented in this article must make its own theoretical premises clear, but cannot possibly encompass the whole field. Accordingly, several theoretical choices and deselections have been essential for my analysis and will be presented in the following.

The analysis merges two distinct theoretical approaches: a cultural studies approach to emotions as defined by Harding and Pribram (2009) and an intersectionality approach probing into junctions between age, gender, ethnicity and class as formulated by Crenshaw (1989, 1991) and Collins (2009). Theories about emotions have been criticized for not taking embodied, social positioning into account (Harding and Pribram, 2009). Conversely, intersectional theories have focused on structural inequality and generally understated how social categories are also constituted through emotions (Lutz, 1990).

For analytical purposes, I use the concept ‘emotional expression’ to describe the way in which judges link the defendant’s body and utterances with their emotional state and future intentions. Although emotions appear intangible, they are conceptualized in this article as the accumulation of what judges perceive when emotions are practised in court through language, gestures, bodily postures and so on (Harding and Pribram, 2009). This analytical approach to emotional experience aims at bridging several basic oppositions through which emotions have often been viewed, such as mind and body, culture and biology, individual and collective – distinctions that have also been criticized by other researchers (Harding and Pribram, 2002, 2009; cf. Latour, 1999; Lupton, 1998). Instead, the expression and perception of feelings should be understood at the intersection between a physical, a linguistic and a specifically sociocultural expression (Harding and Pribram, 2009). This helps us shift attention from a definition of emotions as something people have to what emotions do (Ahmed, 2004), and how they function as social practices in different settings. This embodied, emotional experience is interactive and relational (Williams, 2009) in the sense that its meaning shifts according to social situations and expectations within specific institutions. Danish legal actors often use an ADHD diagnosis to place the defendant’s anger and violent actions within a comprehensive framework, but this is a new phenomenon that would not have made sense 15–20 years ago (cf. Moore, 2007; Valverde, 2003). Emotions, and the ways we interpret them, must be seen as part of these collective cultural and historical experiences (Jaggar, 1989), contributing to the construction of particular kinds of criminal problems and answers.

Research has focused predominantly on extraordinary emotions such as anger or remorse in a court setting, but as noted by Richards (2005) there is a range of ‘ordinary’ emotions more seldom addressed such as boredom, impatience or frustration. Accordingly, also defendants’ expression of seriousness, indifference or even boredom is used by judges to establish knowledge about past conflicts and future behaviour (Van Oorschot et al., 2017), and equally influential on how – and if – judges understand the displayed emotions. Danish judges themselves often told me how ‘one can understand’ or ‘it makes an impression’ about cases and defendants they seemed to relate to.³ It might be mitigating for the defendant if the court understands his or her reactions in the moment of crime or in court – but the contingency of this understanding is seldom reflected upon by judges themselves. In contrast, I argue that judges perceive and assess emotions through a process of categorization. Thus, the defendant as subject is produced who not only acts emotionally but is also positioned in terms of gender, class, race, age and other modes of identity.

Intersectionality theorists highlight and recognize these multiple identities at stake in social situations through the interweaving of different categories (Collins, 2009; Lutz et al., 2011). The theory assumes that identities interact in many and often simultaneous ways, contributing to a systematic social inequality. Intersectionality theory also focuses on the physical decoding of the body, a perspective I find particularly fruitful in relation to the concept ‘emotional expression’, since defendants’ gestures and bodily posture may convey to judges not only a general emotion but also a socially positioned, embodied emotion. Defendants will be expected to express feelings according to their category membership: there are different expectations to women’s emotions than men’s (Collier, 1998; Jaggar, 1989; Lutz, 1990), and ethnic minorities may be described as reacting in specific ways according to their ‘culture’ (Baillot et al., 2014; Harding and Pribram, 2009). These different expectations affect judges’ specific possibilities of understanding what the defendant expresses emotionally.

Focusing on intersections in the present empirical material means questioning how emotions are constructed both relationally and contextually within the legal process. Relationally in the sense of the link between the categories; does it carry the same meaning to be a man or woman, respectively, and have an ethnic minority background; or do these gender differences in relation to ethnicity have implications for the ways in which courts perceive the defendant? And contextually because it is necessary to analyse the particular situations in which these categories become articulated or of particular relevance in each case (Valverde, 2003). One cannot assume in advance when and how this meaning will unfold, a point which is in line with other scholars’ critique of focusing too narrowly on intersecting categories instead of devoting attention to dynamic processes of categorization (Choo and Ferree, 2010; McCall, 2005). Thus, gender or age categories do not generate knowledge about behaviour per se since they are always constructed in specific locations and contexts (Yuval-Davis, 2006). These conceptual reflections are used in the subsequent sections to analyse how judges perceive emotional expressions through processes of categorization in specific contexts. In the following, the Danish court context for emotions is unfolded along with reflections about methodological choices.

Methods, Data and Context

Danish Criminal Courts

Scandinavian law has been characterized as a separate legal system (Tamm, 2008), and as a system adhering to civil law, but with elements of common law procedure particularly concerning its adversarial mode (Anderson, 1992). Denmark does not have specialized investigating judges, and the Danish system of criminal and civil courts at the trial stage is simple and unitary. There are no separate police courts, correctional courts and so on, and the same judge is empowered to deal with both civil and criminal cases (Langsted et al., 2014).

In Danish criminal cases at district court level, a full layman trial consisting of one legal judge and two lay judges will preside when defendants have pled not guilty in crimes with an upper sentencing limit of 4 years. When the court hearing begins, they will appear from the deliberation room and walk towards the elevated podium in the courtroom, while everybody rises and only sits again when the judges have seated themselves. On the one side, the defence attorney sits with his client, while the opposite side is occupied by the prosecutor. The witness box is situated in the middle of the room facing the judges.

The defendant is heard first and is questioned by the prosecutor. The prosecutor has to be objective during the trial and must not only mention information that points at the defendant’s guilt, but also information that speaks for his or her innocence. After this examination, the defence attorney and finally the court can question the defendant. Afterwards, witnesses are heard in the same way. If a decisive question has not been asked by a prosecutor, the judge must do so, but apart from this interaction, the judge often takes a passive role similar to common law systems (Anderson, 1992). After producing the evidence, closing arguments are made by prosecutor and defence attorney. The last word is given to the defendant.

Crime trials in Denmark are quite formalized (Wandall, 2008), as is the case in a Swedish context (Bergman Blix and Wettergren, 2016; Dahlberg, 2009). Judges generally perceive the emotional aspects of cases ambivalently: these aspects are important, but they must also be kept within the court’s implicit as well as explicit rules of communication (Bergman Blix and Wettergren, 2016; Johansen, 2015). Furthermore, the emotional aspects of a case are usually omitted in Danish rulings or written trial transcripts. Thus, while feelings can be acknowledged at a practical level to some extent, they seldom form part of the formal legal justification.

Observations and Interviews

The empirical material consists of field notes from 80 criminal cases as well as interviews with 20 judges presiding in these cases. The duration of the cases ranged between 1 h and 8 days, with an average of 3 h. I was not directly able to select specific judges as participants because I followed particular violence cases, and the judges happened to be presiding in these cases.⁴ The 80 observed cases took place in three county courts in the Copenhagen area. Following a judicial reform in 2007, the number of Danish county courts was reduced from 82 to 24, meaning that literally any court in Denmark now has approximately the same size and handles the same amount and type of crime trials. The studied courts can thus be characterized as being quite ‘typical’. I had access to judges’ and lay judges’ deliberation in nearly half of the cases, allowing me insight into their exchanges about defendants’ emotional expressions.

Observations were noted down during cases and were written into detailed field notes directly following each observation. Besides the recording of age, sex, ethnic background and dress of defendants in the courtroom, my observations focused on both verbal and non-verbal interactions between primarily judge and defendant: dialogue, intonation of voice, facial expressions, physical gestures, posture of the body and so on. Some of these exchanges were quite explicit to observe, but the meaning that judges attached to them was more elusive and prompted me to go through parts of my field notes with the observed judge after each trial either informally or through semi-structured interviews. By being present at many of the crucial moments in which judges make decisions, their specific reflections in each case emerged as much more practice-oriented than if I had only interviewed judges about their general opinions. All interviews were recorded and transcribed and lasted between 1 h and 1½ h.

I draw upon 800 pages of field notes from the observation of cases as well as from recurring, informal conversations with judges and other legal actors such as prosecutors and defence attorneys. Field notes allow for comparison of many different episodes, making it possible to establish how common a theme or a perception seems to be among informants in the field, and they enable the systematization of experiences from the social context (Ellen, 1984; Hammersley and Atkinson, 1983). My analysis is based on a coding practice that emerged through repeated reading of interview transcripts and field notes. The initial coding was open in order to identify themes without imposing them from the outset and was followed by a more selective coding before detailed analysis was conducted.

Each judge was informed of the project and its scope and was able to accept or decline participation. Since criminal cases in Denmark are open to the public, observations in the courtroom did not require formal consent of defendants, but before each trial I always talked to them and their lawyers about my presence as a researcher, as well as the way in which the data would be anonymized. The names of judges, defendants, as well as particular circumstances of the criminal cases have been altered in order to secure this anonymization.

Expressing Emotions in the Courtroom

Even though both linguistic and bodily expressions must be considered as interconnected aspects of expressing emotions (Harding and Pribram, 2009), the present data also suggest that language and non-verbal behaviour play slightly different roles at different points during the court hearing. The judges studied here expect defendants to express emotions linguistically at specific and delimited times. This should happen during the defendant’s explanation at the beginning of the court case, and eventually if the defendant wants to have ‘the last word’. The defendant’s linguistic and bodily expressions of how they feel are of course often simultaneously decoded by judges, but judges will also consider defendants’ bodily postures and expressions when defendants do not speak. Speech is allowed only at certain points during the case, whereas the body is open for interpretation during the whole court hearing. These different aspects are analysed in the following in order to highlight how and when judges generally expect defendants to react in emotionally appropriate ways.

It is commonly shared among the judges studied here that the defendant’s ability to show and tell how he or she is affected by the case does have an impact on judges’ own sentencing practices (Johansen, 2015). These emotions address the defendant’s way of relating to the offence. The judges explain that it reveals something about defendants’ personalities if they realize the severity of the situation. In the following examples, judges explain what they ‘want’ from defendants when defendants speak about their past actions during their explanation in court:

I think it means something if they – well, it sounds a bit wrong, but – if they are remorseful. If they say that they certainly goofed up, and if only they hadn’t done that. Or if they have tried to say they’re sorry or something. It does have an impact when you believe what they say. (Judge E, interview)

I really got the impression that what he said was true. He had to pull himself together in a room with a lot of spectators, but still he felt an urge to say, ‘I really regret this, and I’m sorry’. And I think I believed him. You could say that it did not hurt his case. (Judge F, interview)

It’s like this, ‘How did the case evolve, what kind of relation is it, and what kind of person is sitting in front of you? Is it somebody who is remorseful and sorry, or is it someone who walks in with an attitude, and you may see them again [in the courtroom] within half a year?’ Then it is just wasted. It’s that impression [you get]. (Judge D, interview)

Judge E is a bit reluctant to use the word ‘remorse’ because she thinks it sounds wrong, but remorse is quite commonly used by both herself and the other judges studied here. Judge E ‘reads’ remorse out of defendants’ ability to say that they are sorry and that they regret. Furthermore, the judge sees it as having ‘an impact’ if one believes what they say. Likewise, judge F reflects on the trustworthiness of the defendant’s oral articulation of regret, and how it may help the defendant’s case. According to judge F, his trust in a particular defendant is supported by the fact that the defendant had to overcome himself in order to express remorse publicly, but managed to go through with it. Finally, the quotation from judge D expresses that both the emotions surrounding the deed, the present feelings of remorse, and the future risk of recidivism are interlinked perspectives (Cicourel, 1976). Remorse thus communicates something important about the defendant. It tells judges if they can trust that the defendant will not repeat violence in the future (Van Oorschot et al., 2017). This is also why all three quoted judges seem to address sentencing issues when they speak of ‘believable’ remorse.

Apart from the situation when the defendant is heard in the witness box, one other situation calls for the defendant to voice self-scrutiny. This is ‘the last word’. Sometimes the defendant is not inclined to say anything, but may be encouraged to do so by the defence attorney, as the following example shows:

The case is about a fifty-six-year-old man who has threatened a civil servant. After the incident, though, he immediately apologized to the victim. At the end of the court case, the judge looks at the defendant sitting beside his attorney and says:

‘As a defendant, you have the last word. Is there anything you wish to say?’

The defendant sits quietly and looks at the judge.

Judge G: ‘But you don’t have to say anything’.

Defence attorney: ‘Do you feel sorry?’

Defendant: ‘Of course I do’. [Said with emphasis]

The sentence is twenty days of conditional imprisonment with thirty hours of community service. The judge explains this sentence in the courtroom: ‘This is serious, which justifies twenty days of prison. The mitigating aspect is that you’re sorry’. (Field notes)

Even though the defendant has to be encouraged by his defence attorney to speak up and say if he feels he is sorry, he says it with conviction and the judge uses this apology as a justification for a suspended sentence.

In another observed case, a 19-year-old defendant spoke up at the end and said he was sorry about what had happened. He had denied almost all the charges, but explained that the last 4 years since his father’s death had been hard on him. He just wanted to get on and get an education. He was subsequently found guilty of all charges, but received a very mild sentence because the judges believed he had learnt ‘the hard way’. One of the judges subsequently remarked in an interview: ‘He didn’t seem as rotten as the others’. The judges went on to explain that the fact that he was able to reflect on his own actions, to feel sorrow because of his father’s death, and finally to express a longing for a better future, convinced the judges that he was different from the cases they normally encounter. It exemplifies how these evaluations are centred on defendants’ stance towards both past and future (cf. White, 1990).

The preceding examples have involved defendants’ linguistic expressions of feelings of remorse and sorrow. These expressions are partly codified in the form of defendants’ testimony and their last word. They are also morally expected by judges to be voiced during a court hearing (Scheffer, 2010). The following paragraph will analyse embodied emotional expressions that seem to take up a more informal, but highly effective way for judges to interpret defendants’ emotional stance towards the crime committed.

‘Behaviour’ and ‘Appearance’

The body may in itself be an indicator of emotions (Williams, 2009), expressed, for instance, through ways of sitting on a chair and showing (dis)respect or even lack of remorse (Sundby, 1997–1998). Judges participating in this study often addressed defendants’ ways of expressing themselves in court through bodily attitudes (cf. Morrison et al., 2007). For instance, one judge commented that, ‘Sometimes you sit in front of someone, and remorse is almost glaring out of their eyes’ (judge F). The judge referred to a defendant who had not even spoken up but had still managed to communicate remorse to the judge. In order to expose the range of interpretations that judges may draw upon when facing defendants’ bodies in violence cases, I now introduce a more lengthy example from an interview carried out immediately after a violence case. Here, two young defendants had made a negative impression on judge H. During the interview, the judge touched upon the kinds of knowledge that surfaced through her impression of the defendants’ physical appearance. The judge explained how she assesses defendants’ reactions when they sit in front of her in the witness box and when they sit beside their attorney during the court hearing:

Judge H:

‘It’s the overall impression; how did he appear when he was sitting in front of me and giving his explanation, how does he appear during the rest of the case, for example when witnesses come in. And this is why you have to spend some time looking up and keeping an eye on the behaviour of those who are sitting in the courtroom’.

Interviewer:

‘Yes. How much time do you have, during a court case…?’

Judge H:

(Pause) ‘I must admit – not much. This is why I particularly notice if someone starts making trouble, you could say. Then I focus. But I still think that during those fifteen minutes when the defendant is sitting in front of me – because he is right in front of me – I can get quite a good impression’.

Interviewer:

‘What makes an impression on you?’

Judge H:

‘It’s their body language and their attitude. The way they sit, also, and the way they answer questions’.

Interviewer:

‘Could you give some examples from today’s case?’

Judge H:

‘Well, I think, those young ones, who walk in and sit totally laidback and almost as if they don’t care: it irritates me; I might as well be honest and admit it. Because it gives me the impression that they haven’t understood at all what this is about: “This is serious business, and this is the time when you should sit up straight and nicely, and make it look – well at least for us sitting up here – as if you have understood how serious this is.”’ (Interview)

The example illustrates why and to what extent the physical encounter with the defendant generates knowledge that the judge could never retrieve from the case files alone. This is a particular quality of the meeting between defendant and judge in the courtroom, and the judge stresses its importance by underlining how the defendant sits ‘right in front’ of her, just as she ‘keeps an eye on’ the behaviour of all people present in the room. The example also indicates that she pays attention to these reactions during the whole case from the point when defendants walk into the room, to how they react on witnesses. Through words such as ‘overall impression’, ‘seriousness’, ‘reactions’, ‘appear’, ‘attitude’, ‘body language’, ‘sit up straight’ and ‘understand’, the judge addresses a range of expressions related to the body and the defendant’s emotional understanding of the case. The example also underlines the kinds of emotional reactions she does not appreciate, for instance, their laid-back stance. Analytically, one might argue that a laid-back stance is not an emotion, but I refer to Richards (2005) and his notion of ‘everyday’ emotions. In this perspective, to be laid-back is also to be indifferent to the situation, and this counts as an (undesirable) emotional expression from the judge’s viewpoint.

Furthermore, social categories such as age and gender are brought into play both directly and indirectly and linked to specific modes of reaction in the courtroom. As illustrated by the judge’s quotation, for instance, ‘those young ones’ not only denotes an age category, but also relates to their physical behaviour. Young people with a more respectful attitude have never been called ‘those young ones’ in the cases I observed – a point that illustrates how categories and behaviour constitute each other (Lutz et al., 2011; Valverde, 2003). Additionally, the judge’s description of the two defendants’ physical attitude seems to indicate a gender aspect. Young men sit laid-back on their chairs in the courtroom, a bodily attitude recurrently mentioned by judges in this study when describing young, male defendants who had not taken the case and their own criminal actions seriously enough. Judges thus take notice of defendants’ attitude or appearance, but one might say that even having an ‘attitude’ tells something about the defendant, because people entering the courtroom in a respectful manner have never been described to me as having an ‘attitude’. To have an ‘attitude’ is to have a negative approach to the court. It expresses disdain.

So far, the empirical examples have highlighted how judges ‘read’ specific kinds of emotional expressions from defendants such as remorse, sorrow, disdain, indifference or seriousness. They thus interpret defendants’ words and actions through the register of emotion. However, this emotional register is also tinged by gendered and cultural expectations. Judges interpret emotions in the process of categorizing defendants with specific social positions. In the following, this categorization process will be unfolded.

Intersections for Impressions

In this section, I analyse three effective intersections involving age, gender and ethnicity that influence judges’ assessments and their legal reactions. I have focused on these intersections because they were prevalent in the empirical material. Due to space constraints, only two intersectional factors at a time have been selected for analysis in this article, although I will point at other possible axes of analysis.

Age and Indifference

The Danish Penal Code states that defendants over 15 years of age can be sentenced as adults (with some exceptions), but also that it is a mitigating circumstance if defendants are younger than 18 years old. This is due to their lack of maturity. Judges are consequently very conscious of this age perspective when sentencing. As a rule, young persons under 18 with no previous convictions and charged with minor crimes have the possibility of obtaining a suspended sentence. At the other end of the age line, one does not find the same demarcation, but defendants of more than 60 years of age also generally face milder sentences. This is the legal framework within which age is understood.

However, age is not only a legal, but also a social category in the courtroom, and so is co-constructed during the whole process. Legal actors read behaviour out of defendants’ age, in the sense that age perceptions are influenced by personal and social characteristics as well as prior criminality. Massive prior criminality makes courts more reluctant to speak of ‘young age’ when sentencing even if the defendant is under 18. Conversely, the absence of prior criminality can persuade courts to talk about defendants’ ‘young age’ even if they are in their mid-20s (Wandall, 2008).

‘Young age’ is therefore generally defined more broadly than the legal boundary of 18 years. Other categories than age in itself are at work when judges explain that there is a difference between being young and adult: ‘We would expect more from a man of thirty-five years than of a boy of twenty years’ (judge C, interview). However, in the observed cases, it was less obvious that judges really expected less from very young defendants. They were inclined to perceive these defendants as immature, but this was not always considered a mitigating factor. In the following quotation, two judges explain how they perceived two young defendants in two different cases of minor violence. In the first example, judge M explains how she perceived 15-year-old defendant Adil during the hearing. In the second example, judge E comments on a 16-year-old defendant:

Example 1: He sat slumped a bit, maybe because of his young age. He doesn’t know what’s going on, or what he has done. (Judge M, interview)

Example 2: There is a big difference between those sixteen-year-olds. Some of them act very grownup when they sit in court. Of course, there are limits to how well we get to know them, I’d say, but [there are some] who do seem grown up; but this one didn’t seem one day over sixteen. He hadn’t really understood what had happened [during the assault]. In the meantime, his defence attorney has influenced him, and she kept asking if he was sorry! Come on. He wasn’t even good at saying it. He couldn’t even say sorry in a way that made me believe him. (Judge E, interview)

These quotations point at important connections between age, maturity and emotional expressions. What the judges paid attention to was the defendants’ lacking ability of understanding what had happened either in the courtroom (example 1) or during the assault (example 2). The defendants were not previously convicted but quite surprisingly received an unconditional sentence even though the prosecutor had demanded a suspended sentence with conditions of ‘anger management’ treatment in example 2. Interestingly, the argument about a lack of maturity that underpins young age as a mitigating factor is at the same time seen as an aggravating circumstance. To be able to get a milder sentence when under the age of 18, defendants paradoxically need to display maturity through an awareness of both the deed itself and their expressions in the courtroom that might include (convincingly) feeling sorry, being serious and so on. It is quite remarkable from the above example about 15-year-old Adil that this lack of maturity and self-reflection is decoded through his bodily posture – ‘he sat slumped’. The court can read his indifferent emotional stance just from the way he is sitting in front of the judge.

These intersections between age, emotional expression and lack of maturity underline that age as a category is not meaningful in itself because it is continuously related to other kinds of knowledge that arise through the physical and emotional perception of the defendant (Duncan, 2002). Just as people may seem young even in their 20s because of their relative ‘innocence’ as criminals, young people under 18 attract a range of possible interpretations as to their emotional age. This is why age is so much more than a legal or even a social category. Age has emotional and moral meanings that create social identities (Harding and Pribram, 2009) and influence sentencing. As such, judges also construct the meaning of defendants’ age by interpreting their reactions through a register of emotions.

Gender and Remorse

As described earlier, judges expressed an ambivalent understanding of ‘remorse’ because they wish to limit its effects vis-à-vis the legal aspects of a case. Furthermore, remorse is perceived differently according to the kinds of defendants and cases judges are facing (Van Oorschot et al., 2017), and these perceptions are in turn bound to body, gender and the risk of recidivism.

Female defendants and their reactions are generally registered by Danish judges as being different from men’s in the courtroom, because they seem to be more remorseful and sorry, even though judges do mention that they occasionally meet aggressive women. Women are rarely accused of violence, and because of very limited access to cases involving women as defendants, I do not have empirical grounds on which to conclude that they are treated differently than men. However, it is important that judges and other legal actors themselves recurrently express that defendants are treated differentially, implying that a gender perspective is effective in relation to sentencing. Both prosecutors and defence attorneys unanimously said that female defendants received more lenient sentences than men did. Most importantly, though, judges find the reasons for this difference in female defendants’ emotions, as judge A told during an interview:

It does surface once in a while, you know, whether we judge women a bit milder when it comes to violence. And of course, we all want to say ‘no, of course we don’t’. But maybe women are more (pause) – that one is more inclined to give women a suspended sentence in violence cases than men. Because I experience women as being more remorseful, or what one might call it. Of course, remorse in itself does not do it, but it is this assessment: ‘is it safe to give a suspended sentence, because we count on not seeing her again? Will it imply that we are less at risk of seeing her again if we give a suspended sentence?’ And of course, in that situation it means something what one’s attitude is. Also, I much more often see women feeling very alienated from this situation – the fact that they are charged with a crime – and they don’t want that to happen again.

In this quotation, remorse is partially gender-related because women often feel estranged from the experience of standing in a courtroom. Feeling estranged from this situation is also a physical experience because one enters the courtroom and does not know where to place oneself (Wandall, 2008). The body stands bewildered until one of the legal actors points to a chair or a table and asks the person to sit. Being foreign to the court is perceived by legal actors as a parameter for the person’s morality. A probation officer once remarked to me, ‘I am thankful every time a person comes into the courtroom and doesn’t know where to sit’. It is this ‘alienated feeling’ that the quoted judge also alludes to when describing female defendants.

The judges express an assessment of risk in relation to women, and do not count on recidivism to such a great extent as when dealing with male defendants. This risk assessment based on gender is typical of penal systems in modern times (Bramhall and Hudson, 2007; Messerschmidt, 1993), and statistically, Danish judges are right since women have a much lower recidivism rate than men in Denmark (Klement, 2011). The point here, though, is not whether men commit crime more often than women, but how gender is conceptualized in criminal justice, and how cultural values are ascribed to particular gendered identities (Collier, 1998). Connell (1987, 1995) argues that even though countless ways of expressing gender exist for both men and women, there is at any historical point a conception of an idealized gender in the shape of a hegemonic masculinity and an emphasized femininity. Hegemonic masculinity in the context of crime has depicted men as being unemotional, dispassionate and violent, to mention just a few (Collier, 1998; Newburn and Stanko, 1994). Similarly, women may almost be required to express emotions openly (Jaggar, 1989), thus complying with notions of femininity (Harding and Pribram, 2002). This may help explain why some emotions are socially restricted in the courtroom because they can be expressed positively by women and less by men (Lutz, 1990). While women seem foreign to the process and remorseful or even crying, men do not have the same options for expressing these feelings. Danish legal actors almost unanimously said that men seldom cry in court, and one prosecutor remarked, ‘Weeping men in court seem pathetic’ (interview). However, the costs of upholding an expected masculinity by not showing weakness seem to be that men are often constructed as more blameworthy than women (Daly, 1994).

The combination of emotional and gender dispositions gives the judges studied here an impression of the degree of remorse and the risk of recidivism in defendants. This is not only the consequence of a particular meeting in court, but also arises out of a more general categorization of ‘usual’ relations between gender and remorse. The interpretation of specific emotions is thus continuously co-created in the interaction between social categories and a social situation, for instance, through judges’ gendered expectations for ‘remorseful defendants’. In the following examples, these categorization processes are also shaped by cultural understandings of behaviour.

Ethnicity and Humility

Ethnic minority defendants and their behaviour are sometimes couched in terms of national-cultural differences by legal actors participating in this study.⁵ In these situations, they describe ethnic minority defendants as acting outside a norm, indirectly highlighting an otherwise tacit behavioural expectation:

Ethnic minorities are a bit like, well, they don’t understand the game. It’s no use that they enter with a big chain around their neck and tilted cap and all that. They don’t show any humility. It’s more Danish to do it this way: with the face of an undertaker to show that you understand it’s serious. (Interview)

This citation expresses a behavioural and an emotional norm in the courtroom that seems to be challenged by non-familiar ways of acting. ‘Humility’ is explained as a way of showing seriousness, a seriousness expected by judges and cited earlier in this article through expressions such as ‘sit upright in the chair’.

Both judges and prosecutors said that they noticed if the defendant looks the legal actors straight in the eyes when being questioned. It is taken as a sign of honesty. On the other hand, gazing down on the table or being evasive is often seen as a sign of dishonesty, ill will or immaturity. This interpretation of behaviour in relation to honesty is further linked with expectations of showing seriousness and humility. Legal actors defined this kind of behaviour quite consistently, and defence attorneys told me how they would also coach their clients to respond to these expectations. However, not all defendants shared an understanding of these cultural codes. In some of the observed cases, young male defendants wished to show humility, but did it differently. They did not look the judge in the eyes, but looked down – as a sign of respect. This was prevalent among young defendants with other ethnic backgrounds than Danish and was linked to specific cultural expectations and upbringing. The example is not meant as an essentializing description of ‘how all young ethnic minority defendants behave’, but as an example of the vast possibilities for misreading and misinterpreting defendants’ behaviour in the courtroom. When emotional expressions are not explicitly articulated within the penal system, but taken for granted as a norm of general application, one is in danger of neglecting that every behavioural norm is culturally defined. Consequently, humility and seriousness are only allowed to be expressed within a certain acceptable framework or emotional norm.

In spite of this implicit notion of recognizable versus alienated ways of reacting in court, explicit reference to this majority norm is seldom made. One exception was the following example in which conflicts during the legal proceeding provoked explicitness:

Forty-five- year- old Adnan is accused of having been charged with simple violence. One of the witnesses is his landlord, a man of his own age and of the same Pakistani background. From their explanations, one can deduce that they have both been living in Denmark for a long time, and they speak fluent Danish when addressed by the court. They are quite manifestly enemies and keep sending each other glances. Suddenly, during the witness examination, Adnan takes a chair beside him and hurls it at the witness, shouting in Panjabi. While the attorney and a police officer separate the parties, judge K exclaims, ‘Will you stop immediately; this is not the way we behave in Danish courtrooms!’ (Field notes)

This reference to ‘Danish’ as opposed to other behavioural norms in court was obviously only prevalent in cases where one or more of the parties had another ethnic background than Danish. In other observed cases where defendants would lose their cool, in one case even throwing a cup of water into the empty space in the centre of the courtroom, this was denounced as ‘bad behaviour’ or ‘loss of control’, but not as being ‘un-Danish’.

An American experimental research project demonstrated that a whole hierarchy of emotions exists in criminal cases, demarcating boundaries for being ‘appropriately upset’ (Rose et al., 2006). Researchers’ analysis of these emotional norms revealed a principle of proportionality. The more serious the crime, the greater the emotional reaction was expected by test persons (see also Ellison and Munro, 2009). While the study established a relation between the offence and ordinary people’s expectations about emotional expressions, the researchers did not take into account how issues of gender or ethnicity relate to this emotional ‘norm’. The examples from my research, on the other hand, point to the importance of considering not one but many ways of showing emotions in the courtroom, of which only some are known and acknowledged by judges and other legal actors. Some emotions are downright misunderstood because of different underlying norms, whereas in other instances, similar reactions (e.g. throwing chairs or cups in the courtroom) are assessed differently according to differences in defendants’ ethnic backgrounds. These different assessments might be even further highlighted by introducing a gender dimension, such as female defendants with ethnic minority backgrounds who are expected to behave according to assumed cultural norms. During my fieldwork, judges would sometimes pay attention to female ethnic minority victims, because they were afraid that these victims would be less likely to speak up because of their ‘culture’. A similar point has been made in a study on the judicial assessment of women’s rape allegations in asylum tribunals in the United Kingdom, where decision makers turned to markers of credibility such as emotional demeanour, often informed by gender and cultural stereotypes (Baillot et al., 2011, 2014). These expectations draw on emotional norms that remain quite implicit during the court sessions and therefore also concealed from the defendants who cannot or will not decode these.

Concluding Discussion

Judges’ notions of expected – and accepted – emotions in a courtroom context are intimately associated with gendered, majority perceptions of behaviour. It has proven useful to analyse primary identity categories as expressed in intersectionality theory from the vantage point of emotions, revealing the ways in which social identities are also shaped by emotional and moral meanings in this particular legal setting. This indicates that existing literature on defendants’ emotional expressions, such as remorse, may be supplemented by new perspectives that include the very different social positions in which emotions take on a variety of meanings and possibilities. For example, remorseful female defendants may impart to courts a story about reduced risk when compared to expressions of ‘masculinity’ and ‘attitude’. Certain masculinities linked to youth and ethnic minority traits invoke an impression of ‘bad attitudes’, indifference and lack of sincerity. A male defendant displaying ‘maturity’ and adequate remorse, on the contrary, leads judges to conclude that ‘we won’t see him again’.

The physical appearance of the defendant consists of various elements, including the body, emotions and social relations. Bodily posture conveys more than a physical state. It combines judges’ descriptions of defendants’ attitude and behaviour, descriptions that indicate specific ways of expressing seriousness or disrespect simply through defendants’ posture on a chair. These emotional elements may be ambivalently embraced by the court, but they nevertheless give judges important indications of the risk of recidivism and consequently of possible alternative sanctions. This is borne out in judges’ indirect social acceptance as well as sentencing considerations, encapsulated in quotations such as ‘one can understand’ and ‘is it safe to give a suspended sentence?’

Danish judges’ understanding of emotions clearly demonstrates their interest in the defendant as a responsive individual. However, this interest is limited to specific, acknowledged kinds of feelings and social relations. This suggests that emotions are neither general nor neutral entities. Judges’ assessments display implicit knowledge about ‘normal’ emotional reactions, indirectly pointing to ‘anomalies’ that are rejected as incomprehensible in the context of the courtroom. The point is that these expectations about ‘appropriate’ reactions shift according to the kinds of categorization processes that are at stake. For instance, an expected emotional reaction from a woman is not necessarily considered appropriate if it is displayed by a man.

My analysis has focused on the role of emotions in a Danish court context, but literature on emotions in criminal cases from other legal systems suggests that there are similarities as well as differences concerning both procedural styles and the national-cultural context of emotional expectations in the courtroom. For example, Weijers (2004) has argued that the inquisitorial tradition encourages moral exchanges between judge and offender, whereas the common law tradition prefers moral monologues by judge or other legal actors. On the other hand, cross-cultural research has pointed at the universality of emotions such as anger, shame and remorse within the criminal justice system (Scherer, 1997; Schwartz, 1992), as well as a general process of ‘emotionalization’ of law recently happening at a global level (Karstedt, 2002). These perspectives might be used for further explorations into the complex relation between defendants’ social positions and the emotional expectations these positions set up.

This article has focused on majority constructions of class, gender, age and ethnicity. They constitute recurring positions in the observed violence cases, and some categories such as age and the social circumstances of defendants are formally addressed in the Danish Penal Code, although my analysis locates the many simultaneous meanings they carry in the courtroom. The analysis of these categorization processes thus reflects my own strategic choices in relation to the research question, but may not fully exhaust the relations between ‘emotional tropes’ (Dahlberg, 2009) and different kinds of criminal cases and even different legal settings. Future inquiries into the relations between emotions and the way they shape social identities for defendants would further broaden our understanding of these differences, for example, how hate crimes may invoke other categorization processes such as ‘whiteness’ (Hearn, 2011). I have stressed the importance of seeing class, gender, age and ethnicity as processes of categorization that gain their meaning in relation to specific contexts rather than being fixed categories (Yuval-Davis, 2006). This dynamic approach allows for a continuous adaptation of the analysis to the complex interplay between processes of categorization and the social situations in which they occur.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Research for this article was aided by the Danish Council for Independent Research [0602-02291B].

Notes

References

Ahmed

(2004) The Cultural Politics of Emotion. Edinburgh: Edinburgh University Press.

Anderson

(1992) The transition from inquisitorial to adversarial criminal procedure in Denmark. Scandinavian Studies 64(2): 181–198.

Baillot

Cowan

Munro

(2011) Crossing borders, inhabiting spaces: The (in)credibility of sexual violence in asylum appeals. In: Fitzgerald

(ed) Regulating the International Movement of Women from Protection to Control. London: Routledge, pp. 111–132.

Baillot

Cowan

Munro

(2013) Second-hand emotion? Exploring the contagion and impact of trauma and distress in the asylum law context. Journal of Law and Society 40(4): 509–540.

Baillot

Cowan

Munro

(2014) Reason to disbelieve: Evaluating the rape claims of women seeking asylum in the UK. International Journal of Law in Context 10(1): 105–139.

Bandes

(1999) Introduction. In: Bandes

(ed) The Passions of Law. New York: New York University Press, pp. 1–16.

Bandes

(2009) Empathetic judging and the rule of law. Cardozo Law Review De Novo 31(1): 133–148.

Bandes

Blumenthal

(2012) Emotion and the law. Annual Review of Law and Social Science 8: 161–181.

Bergman Blix

Wettergren

(2016) A sociological perspective on emotions in the judiciary. Emotion Review 8(1): 32–37.

10.

Bramhall

Hudson

(2007) Criminal justice and ‘risky’ masculinities. In: Hannah-Moffat

O’Malley

(eds) Gendered Risks. London: Routledge, pp. 127–144.

11.

Choo

Ferree

(2010) Practicing intersectionality in sociological research: A critical analysis of inclusions, interactions, and institutions in the study of inequalities. Sociological Theory 28(2): 129–149.

12.

Cicourel

(1976[1968]) The Social Organization of Juvenile Justice. London: Heinemann.

13.

Collier

(1998) Masculinities, Crime and Criminology. London: Sage.

14.

Collins

(2009) Emerging intersections – building knowledge and transforming institutions. In: Dill

Enid

(eds) Emerging Intersections: Race, Class, and Gender in Theory, Policy and Practice. New Brunswick: Rutgers University Press, pp. viii–xvii.

15.

Connell

(1987) Gender and Power. Cambridge: Polity Press.

16.

Connell

(1995) Masculinities. Cambridge: Polity Press.

17.

Crenshaw

(1989) Demarginalizing the intersection of race and sex: A Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum 1989: 139–167.

18.

Crenshaw

(1991) Mapping the margins: Intersectionality, identity politics, and violence against women of color. Stanford Law Review 43(6): 1241–1299.

19.

Dahlberg

(2009) Emotional tropes in the courtroom: On representation of affect and emotion in legal court proceedings. Law and Humanities 3(2): 175–205.

20.

Daly

(1994) Gender, Crime, and Punishment. New Haven: Yale University Press.

21.

Duncan

(2002) ‘So young and so untender’: Remorseless children and the expectations of the law. Columbia Law Review 102: 1469–1526.

22.

Eisenberg

Garvey

Wells

(1997–1998) But was he sorry? The role of remorse in capital sentencing. Cornell Law Review 83: 1599–1637.

23.

Ellen

(1984) Ethnographic Research: A Guide to General Conduct. London: Academic Press.

24.

Ellison

Munro

(2009) Reacting to rape: Exploring mock jurors’ assessments of complainant credibility. British Journal of Criminology 29(2): 202–219.

25.

Finkel

Parrott

(2006) Emotions and Culpability: How the Law is at Odds With Psychology, Jurors, and Itself. Washington, DC: American Psychological Association.

26.

Hammersley

Atkinson

(1983) Ethnography: Principles in Practice. London: Tavistock.

27.

Harding

Pribram

(2002) The power of feeling: Locating emotions in culture. Cultural Studies 5(4): 407–426.

28.

Harding

Pribram

(2009) Introduction. In: Harding

Pribram

(eds) Emotions: A Cultural Studies Reader. London: Routledge, pp. 1–24.

29.

Hearn

(2011) Neglected intersectionality in studying men: Age(ing), virtuality, transnationality. In: Lutz

Vivar

MTH

Supik

(eds) Framing Intersectionality: Debates on a Multi-Faceted Concept in Gender Studies. Farnham: Ashgate, pp. 89–104.

30.

Hervik

(2004) The Danish cultural world of unbridgeable differences. Ethnos 69(2): 247–267.

31.

Jaggar

(1989) Love and knowledge: Emotion in feminist epistemology. In: Jaggar

Bordo

(eds) Gender/Body/Knowledge: Feminist Reconstructions of Being and Knowing. New Brunswick: Rutgers University Press, pp. 145–171.

32.

Johansen

(2015) Personen bag straffen. Forhandlingen af viden om sigtede. Copenhagen: Jurist – og Økonomforbundets Forlag.

33.

Karstedt

(2002) Emotions and criminal justice. Theoretical Criminology 6(3): 299–317.

34.

Klement

(2011) Samfundstjeneste. En effektevaluering. Copenhagen: Justitsministeriets Forskningskontor.

35.

Langsted

Garde

Greve

(2014) Criminal Law in Denmark. Copenhagen: Jurist - og Økonomforbundets Forlag.

36.

Latour

(1999) Pandora’s Hope: Essays on the Reality of Science Studies. Cambridge: Harvard University Press.

37.

Little

(2002) Adjudication and emotion. Florida Coastal Law Journal 3: 205–218.

38.

Lupton

(1998) The Emotional Self: A Sociocultural Exploration. London: Sage.

39.

Lutz

(1990) Engendered emotion: Gender, power, and the rhetoric of emotional control in American discourse. In: Lutz

Abu-Lughod

(eds) Language and the Politics of Emotion. New York: Cambridge University Press, pp. 69–91.

40.

Lutz

Vivar

MTH

Supik

(2011) Framing intersectionality: An introduction. In: Lutz

Vivar

MTH

Supik

(eds) Framing Intersectionality: Debates on a Multi-Faceted Concept in Gender Studies. Farnham: Ashgate, pp. 1–24.

41.

Lynch

Haney

(2015) Emotion, authority, and death: (Raced) negotiations in mock capital jury deliberations. Law & Social Inquiry 40(2): 377–405.

42.

Maroney

(2006) Law and emotion: A proposed taxonomy of an emerging field. Law and Human Behavior 30(2): 119–142.

43.

McCall

(2005) The complexity of intersectionality. Signs 30(3): 1771–1800.

44.

Messerschmidt

(1993) Masculinities and Crime: Critique, and Reconceptualization of Theory. Boston: Rowman & Littlefield.

45.

Moore

(2007) Criminal Artefacts: Governing Drugs and Users. Vancouver: UBC Press.

46.

Morrison

Porter

Fraser

(2007) The role of demeanour in assessing the credibility of witnesses. Advocates Quarterly 33: 170–192.

47.

Mulligan

Scherer

(2012) Toward a working definition of emotion. Emotion Review 4(4): 345–357.

48.

Myers

(1988) Social background and the sentencing behaviour of judges. Criminology 26(4): 649–676.

49.

Newburn

Stanko

(1994) Just Boys Doing Business? Men, Masculinities and Crime. London: Routledge.

50.

Nussbaum

(1996) Emotion in the language of judging. St. John’s Law Review 70: 23–30.

51.

Rachlinski

Guthrie

Wistrich

(2013) Contrition in the courtroom: Do apologies affect adjudication? Cornell Law Review 98(5): 1189–1219.

52.

Richards

(2005) Emotions into words – or words into emotions? In: Gouk

Hills

(eds) Representing Emotions: New Connections in the Histories of Art, Music and Medicine. Aldershot: Ashgate, pp. 49–68.

53.

Roach Anleu

Mack

(2005) Magistrates’ everyday work and emotional labour. Journal of Law and Society 32(4): 590–614.

54.

Rose

Nadler

Clark

(2006) Appropriately upset? Emotion norms and perceptions of crime victims. Law & Human Behaviour 30(2): 203–219.

55.

Scheffer

(2010) Adversarial Case-Making: An Ethnography of the English Crown Court. Amsterdam: Brill.

56.

Scherer

(1997) The role of culture in emotion-antecedent appraisal. Journal of Personality and Social Psychology 73(4): 902–922.

57.

Schwartz

(1992) Universals in the content and structure of values: Theoretical advances and empirical tests in 20 countries. In: Zanna

(ed) Advances in Experimental Psychology, Vol. 25. San Diego: Academic Press, pp. 1–65.

58.

Steffensmeier

Hebert

(1999) Women and men policymakers: Does the judge’s gender affect the sentencing of criminal defendants? Social Forces 77(3): 1163–1196.

59.

Stepnick

Orcutt

(1996) Conflicting testimony: Judges’ and attorneys’ perceptions of gender bias in legal settings. Sex Roles 34(7): 567–579.

60.

Sundby

(1997–1998) The capital jury and absolution: The intersection of trial strategy, remorse, and the death penalty. Cornell Law Review 83: 1557–1598.

61.

Tamm

(2008) Scandinavian law. In: Cane

Conaghan

(eds) The New Oxford Companion to Law. Oxford: Oxford University Press.

62.

Valverde

(2003) Law’s Dream of a Common Knowledge. Princeton, NJ: Princeton University Press.

63.

Van Oorschot

Mascini

Weenink

(2017) Remorse in context(s): A qualitative exploration of the negotiation of remorse and its consequences. Social and Legal Studies 26(3): 359–377.

64.

Wandall

(2008) Decisions to Imprison: Court Decision-Making Inside and Outside the Law. Aldershot: Ashgate.

65.

Weijers

(2004) Requirements for communication in the courtroom: A comparative perspective on the youth court in England/Wales and the Netherlands. Youth Justice 4(1): 22–31.

66.

Weisman

(2014) Law, Justice and Power. Showing Remorse: Law and the Social Control of Emotion. Farnham: Ashgate.

67.

White

(1990) Moral discourse and the rhetoric of emotions. In: Lutz

Abu-Lughod

(eds) Language and the Politics of Emotion. New York: Cambridge University Press, pp. 46–68.

68.

Williams

(2009) Modernity and the emotions: Corporeal reflections on the (ir)rational. In: Harding

Pribram

(eds) Emotions: A Cultural Studies Reader. London: Routledge, pp. 139–156.

69.

Yuval-Davis

(2006) Intersectionality and feminist politics. European Journal of Women’s Studies 13(3): 193–209.