Testimonial injustice

For a long time, women’s testimony has had partial or no standing in courts^[1] and considerably limited recognition in the broader social context. Given their supposed overtly emotional character and their purported lack of rationality, they were kept at the margins of the public sphere^[2]– that same sphere which (male) contract theorists conceived as based on a hypothetical social contract that, as shown by Carol Pateman^[3], was always combined more or less tacitly with a parallel sexual one (by which men mutually recognized their sovereignty over women’s bodies and lives, excluding them from self-determination.
Even in the private realm, women’s voices have been constantly silenced. Psychoanalysis itself was born out of an act of silencing. At the beginning of his career, Freud studied female patients affected by what at the time was called hysteria – a ‘pathology’ that has now been removed from psychiatric diagnostic manuals.^[4] Distancing himself from his mentors, Charcot and Breuer, and listening to the traumatic experiences of his patients – who repeatedly told him of sexual assault, abuse, and incest – in his early work The Etiology of Hysteria Freud came to the conclusion that episodes of sexual violence (which he called “occurrences of premature sexual experience”) were at the bottom of the development of the condition itself. However, within the following year he repudiated his findings: hysteria was so common among women that, had his patients’ stories been true, instances of sexual abuse should have been widespread not only among lower classes in Paris (the context of his first interactions with hysteric patients), but also among the bourgeoisie in Vienna, where he had established his practice. Confronted with an uncomfortable dilemma, he stopped believing the stories he had heard during previous analyses – a shift well exemplified in his subsequent report on Ida Bauer’s case.^[5] Even in the eminently private setting of psychoanalysis, women’s accounts of their own experiences were often interpreted as lacking credibility, especially when they dealt with sexuality – Freud, we may say with a certain degree of irony, had just discovered the significant implications of the fact that the personal is political, that the very separation of public and private is a site of political contestation.

Using legal terminology, it could be said that, especially in the case of one or more women accusing one or more men of sexual misconduct, we can see at work not just the usual presumption of innocence in favor of the latter, but also a kind of presumption of mendacity, against the former – and one that applies well beyond the doors of tribunals.

Unfortunately, such a historical legacy still haunts the present – and in particular the ways in which women who survive rape and sexual harassment are treated both inside and outside courts. As Miranda Fricker puts it in one of the most influential contributions to feminist epistemology of the last decade, survivors continue to experience testimonial injustice – a form of credibility deficit owing to identity prejudice in the hearer.^[6] Using legal terminology, it could be said that, especially in the case of one or more women accusing one or more men of sexual misconduct^[7], we can see at work not just the usual presumption of innocence in favor of the latter, but also a kind of presumption of mendacity, against the former – and one that applies well beyond the doors of tribunals.

In the US, the national imagination is still being influenced by the famous controversy surrounding the case of Anita Hill and Clarence Thomas in 1991, during which the former experienced character assassination both politically and in the media for having accused the latter of sexual harassment. Hill, a law professor and former employee of Thomas at the Equal Employment Opportunity Commission, maintained that Thomas, then a Supreme Court nominee, had sexually harassed her at the time the two worked together. Both the Senate Judiciary Committee and the Senate itself, in light of their role in the appointment of Supreme Court judges, were involved in the controversy – which ended with Thomas’s confirmation by the narrowest margin for approval in more than a century. That case, broadcasted live on national television, also illustrated the complex, intersectional relations between more typically gendered forms of discrimination (e.g. Hill’s private life was aggressively scrutinized for both relevant and irrelevant aspects, while Thomas was almost never questioned about his private life^[8]), racialization (e.g. Thomas’ successful attempt at depicting himself as the only Black person involved, thus erasing Hill’s identity as a Black woman^[9]), and classism (Thomas’ reframing of every allegation against himself as a demonstration of envy for “uppity blacks”).

In light of this lengthy tradition of testimonial injustice, the recent rise of the #MeToo phenomenon is all the more important and deserving of analysis. Emerging in the aftermath of the allegations against Hollywood producer Harvey Weinstein^[10], this hashtag has become the symbol of an international campaign in which hundreds of thousands of women denounced their experiences of sexual violence and harassment at the hands of male employers, partners or even strangers. The mobilization has been hugely successfully – not only forcing Weinstein and a number of powerful men in both media and politics to step back in the light of their acts, but starting a new, feminist conversation that quickly bypassed the boundaries of show-business.^[11] It seems that women’s testimonies and voices are not going to be silenced this time. What are the reasons for this success, and how far has #MeToo gone in fighting testimonial injustice?

One element, which should be taken into account, is the digital framework in which something like an immensely popular hashtag can come into existence. While in episodes such as the Hill-Thomas controversy the mass media already played a pivotal role, its televised nature made it a mainly domestic case – as the international public lacked means to easily notice it and follow its development. Indeed, as documented by Abigail Saguy^[12], in the 1990s considerably different approaches to sexual harassment emerged in Western countries, mostly because of relevant cultural and institutional differences in the various national contexts. A common-law system like that of the United States, for example, allows courts discretion in building case law through jurisprudence to an extent that is unparalleled in a civil-law system, such as that of France. At the same time, this does not come without a cost: in the US the nature of the legal system forced American feminists and lawyers to make a case that sexual harassment violated already existing statutes, which were not explicitly conceived to cover it. Social media, on the other hand, constitutes an important space for the appearance of strongly transnational narratives and campaigns. In this way, forms of testimonial injustice happening in one country can be effectively contrasted starting from the public sphere of another.

The story of Italian actress Asia Argento seems particularly relevant here. Argento, who claimed to have been raped by Weinstein at the beginning of her career, was among Ronan Farrow’s key sources in his detailed investigation of the producer’s violent behaviors. However, conservative media in Argento’s home country, Italy, harshly attacked both her credibility and the timing of her revelation (i.e. twenty years after the alleged crimes); among other things, she was accused of having willingly acquiesced to Weinstein’s actions in order to promote her career and then to have later fabricated a different account, even though no evidence in favor of such views has yet emerged.^[13] While reactions of this kind are not uncommon in the Italian media^[14], foreign media showed great solidarity with Argento in the face of this backlash, pressing their Italian mainstream counterparts to do the same.^[15] A further demonstration of the unavoidable porosity of national public spheres was provided by Guia Soncini, an Italian journalist who first indulged in victim-shaming against Argento on Twitter (writing in her own language) and then published an op-ed^[16] in English in the NYT defending the actress against similar attacks: a few hours after the publication of her piece, both bloggers and Argento herself had already criticized^[17] her incoherence.

Nonetheless, if digital technology boosts the global spread of voices and information, thus making the silencing of structural forms of injustice more difficult, it can also act the other way round – for instance, when one hundred French women, including actress Catherine Deneuve, signed an open letter to Le Monde newspaper to defend the “freedom to pester women” as a meaningful part of sexual life, anti-MeToo commentators throughout the world tried to use it for discrediting the movement against sexual harassment and restated their epistemically violent stereotypes.^[18] In particular, they tried to depict the ongoing campaign against sexual harassment as the creation of a handful of extremist feminists and public figures, with no strong ties with the living conditions of the majority of women. Such an effort has been made easier by the web’s tendency to organize information though so called “filter bubbles”, which mainly show content already in line with one’s ideas and prejudices.^[19] Therefore, new communication technologies alone cannot explain #MeToo’s influence.

If we look at the history of the last few years, we can see that this mobilization had been made possible by the development of powerful feminist social movements – such as Ni Una Menos^[20] in South America (and later in Southern Europe^[21]),The Women’s March in the US and The International Women’s Strike in a number of different countries. Also recent movements not primarily devoted to the feminist cause –such as Black Lives Matter, founded by three Black women in 2013– have, since their very beginning, promoted an intersectional understanding of gender and racial injustice.^[22] Likewise, in the United States, many of the unions that have recently run significant (and often successful) campaigns are composed in large part by female workers.^[23] All these elements point to the possibility that we are witnessing a new wave of mainstream feminist politics and activism, one no longer dominated by identity politics, openly critical of neoliberalism^[24] and interested in engaging with an intersectional critique of multiple forms of oppression. #MeToo would not have been conceivable without such experiences, yet many feminists are still unsure about its capacity to effectively convey the same radical messages.^[25]

We have to consider that, from Fricker’s account, testimonial injustice is strictly related to a systematic identity prejudice at the expense of a knowing subject – whose credibility is ignored or discounted because, for example, she is a woman in a patriarchal society.

We have to consider that, from Fricker’s account, testimonial injustice is strictly related to a systematic identity prejudice at the expense of a knowing subject – whose credibility is ignored or discounted because, for example, she is a woman in a patriarchal society.^[26] Even if Fricker does not explicitly analyze the eventuality of intersectional forms of epistemic injustice in her book, we can easily imagine that some persons may suffer from several kinds of identity prejudice at the same time – for example, one related to their gender and the other to their race. Identities, in other words, are always complex – and the same goes for the prejudices related to them. Now, most of the women who spoke out against Harvey Weinstein are famous, white, highly successful actresses: what does this peculiar intersection of identity features imply for #MeToo’s ability to contrast testimonial injustice for all women speaking about gender violence? In a sense, acknowledging that even hugely famous women still have to face certain behaviors could have profoundly empowering implications. Indeed, when professionals as important and well-paid as Hollywood actresses struggle with sexual harassment or rape in the workplace, then the structural nature of these phenomena becomes hard to deny; given their visibility, they can also inspire many other women to follow their example – as they did. At the same time, their relatively privileged position should not be denied: had the producer been denounced not by worldwide celebrities, but by some members of his staff, would we have had a #MeToo?

In 2011, a black immigrant hotel maid from Guinea, Nafissatou Diallo, accused the then deputy director of the IMF, Dominique Strauss-Kahn, of sexual assault. He was arrested while rushing to leave the US immediately after the alleged crime had taken place. His reputation was considerably damaged by the following scandal, but he was able to have the criminal charges dismissed and settled the related civil lawsuit for an undisclosed amount.^[27] I am not particularly interested here in the judicial conclusion^[28] of this story – which was in part made easier by Diallo’s self-contradictory statements – but in its failure to ignite a wider debate on the pervasiveness of sexual violence in contexts where enormous differentials of power exist: as remarked by Kathy Davies^[29], at the time immigrant maids were left alone in protesting against Strauss-Kahn and, more broadly, the working conditions they had to experience. Diallo was not seen as a good testimonial for the feminist cause by mainstream feminists and media – as if, in order to be harmed by sexual assault, one needs to fit a certain ideal image. In this connection, it is worth noting that the #MeToo slogan was used for the first time in a campaign against sexual assault in 2006, by black civil rights activist Tarana Burke.^[30] Nonetheless, it took eleven more years for this early campaign to be noticed by the wider public in the aftermath of the more famous one. In a sense, such an obliteration of black, working class women’s activism in the United States is not a novelty: the very development of sexual harassment law is usually attributed to the white, middle-class leaders of Second Wave feminism, while actually women of color and from the working class were centrally involved in the struggles that prompted legislative progress in that area.^[31] This is not to diminish or criticize in any way #MeToo, but only to envisage the net of (epistemic) power relations in which its appearance has been possible. It is on such intersectional terrain that we should test in future the effectiveness of the current mobilization in reclaiming testimonial justice for all women.

Hermeneutical Injustice

Of the two types of intrinsically epistemic injustice analyzed by Miranda Fricker, testimonial injustice is not, rather surprisingly, the most strictly connected to gender violence in general and sexual harassment in particular. Indeed, she describes the history of the invention of the notion of ‘sexual harassment’ itself as the “central case” of hermeneutical injustice^[32] – which implies “a gap in collective interpretative resources putting someone at an unfair disadvantage when it comes to making sense of their social experience.”^[33]

Fricker re-reads from this angle the experience of Carmita Wood, the first woman to bring to court her sexual harasser, in an epoch in which the very legal notion needed to make her testimony understandable did not exist.^[34] Wood, the administrative assistant of Boyce McDaniel, then director of Cornell University’s Laboratory of Nuclear Sciences, quit her job in 1975 to avoid sexual harassment at the hands of her boss. After being denied unemployment benefits from the university – which had previously refused to transfer her to another job – Wood appealed Cornell’s decision. While, as Fricker notes, the lack of hermeneutical resources necessary to frame the situation affected both Wood and the man who harassed her, “the harasser’s cognitive disablement [was] not a disadvantage to him. Indeed, there is an obvious sense in which it suited his purpose”.

This kind of injustice works by creating a potential double bind: on the one hand, the person who has been harmed does not have the terms to name it (and this very fact may convince her that what she has endured is not unjust at all); on the other, society as a whole would be inclined to lessen her testimony – this time not by doubting or annihilating her credibility, but simply by failing to understand the sort of injustice she faced. The feminist activists who helped Wood to accuse her superior coined the phrase ‘sexual harassment’ precisely in an attempt to escape such an impasse – an effort which had great historical influence, but failed in that specific case: Wood lost her appeal.

While at first sight, such an anecdote might appear as dramatic and outdated, thanks to Wood and women like her, today those who live the same experience know how to name it, therefore escaping from hermeneutical injustice. Unfortunately, things are not so easy: as stressed by Katherine Jenkins, in some cases of hermeneutical injustice we have to distinguish between manifest and operative concepts. For example, several jurisdictions nowadays have a manifest concept of sexual harassment, which is defined by a corresponding law. At the same time, “the widely shared informal and implicit working understandings people have […] can be said to constitute operative concepts” – many of which, when it comes to gender violence, can be said to incorporate patriarchal myths^[35] (e.g. that according to which “sexually assertive women cannot be raped’). Consequently, you may refrain from denouncing a crime (and other people may not believe you in the case you did) because, although that crime is codified as such, several discriminatory operative concepts prevent the very application of the manifest concept to the specific situation at stake. It is at this juncture that the contribution provided in the last months by #MeToo becomes significant. #MeToo has powerfully reclaimed the usefulness of operative concepts if the former are going to have any practical effect. Moreover, the current mobilization is mainly not about obtaining compensation in courts, but changing social justice and the social imaginary. From an epistemic perspective, this point implies an important shift.

Academic discussions about sexual harassment have often been dominated by a certain legalistic nominalism, usually deployed in a counterproductive back and forth between very broad and very narrow definitions. In the field of philosophy, a vast array of authors have discussed questions such as: can we apply the notion of sexual harassment only to behaviors put in place by men to the detriment of women, or also to the (incredibly less numerous) instances of misconduct of women against men? Does the idea of same-sex sexual harassment make sense? And if it does, should we contrast it by recurring to the same laws? Is it conceivable to prosecute sexual harassment ex officio?^[36] These questions reflect the extensive influence legal discourses had on more general reflections on such a topic and, while they may be useful to improve a country’s legislation, they are too abstract to have any impact of the field of operational concepts. At worst, their focus on very specific dimensions risks obfuscation of the structural nature of gender violence, rendering laws forbidding certain discrete acts as the first and only available means to combat inequality – thus negating the very difference between manifest and operational notions.

#MeToo has marked a significant distancing from a strictly legalistic approach. Firstly, it has emphasized the systemic dimension of patriarchy by asking, what is gendered about violence, rather than which violence counts as gendered.^[37] In this way, the essentialism characterizing debates around who can theoretically sexually harass or assault whom can be put aside: we may well, for example, observe the manifestation of heteronormative violence between persons of the same sex without the need to change our interpretative model; at the same time, while there is no reason to exclude the eventuality of a woman sexually harassing a man, we have to recognize that a similar case would not constitute an instance of a structural social dynamic. Furthermore, this general epistemic move makes room, at least potentially, for a critical analysis of forms of violence in which gender is not usually regarded as a significant element, but may well be so – think for example of mass shootings, a US plague whose perpetrators are virtually all men, many of whom have been evidently immersed in a culture of toxic masculinity.^[38]

A non-legalistic method also allows us to avoid paternalistic forms of victimization – as with the idea that women should be protected by the (usually male) legislator because of their purported weakness, or because gender violence is naturalized as an essential feature of masculinity.

Estelle Freedman has reminded us that “for almost two centuries, [in the US] privileged white men have resisted periodic challenges to the narrow definitions of what constitutes rape, who can be prosecuted, and which women are believable victims.”

Another crucial aspect of hermeneutical injustice pertains to the production of knowledge – especially of the operational knowledge underlined by Jenkins. If a group is hermeneutically marginalized, there will be a propensity to produce interpretations of that group’s social experiences which will be biased due to insufficient influence by the members of the group itself – effectively privileging already hermeneutically powerful sectors of the population.^[39] In this connection, Estelle Freedman has reminded us that “for almost two centuries, [in the US] privileged white men have resisted periodic challenges to the narrow definitions of what constitutes rape, who can be prosecuted, and which women are believable victims.”^[40]

As Donna Haraway claimed thirty years ago, not all perspectives are equally well-positioned to criticize injustice, especially in its systemic forms: the standpoints of the subjugated must be centered, because of their knowledge of the many ways in which denial can be performed (repression, forgetting, disappearing just to name a few). For such a reason, they are least likely “to allow denial of the critical and interpretive core of all knowledge.”^[41] Haraway’s essay, which is regarded as one the milestones of feminist standpoint theory, should not be read as a romanticizing, essentialist view of the superior knowledge of the oppressed: being oppressed does not make you automatically conscious that you are. Rather than referring to individual points of view, her words apply to situated social standpoints^[42]: oppression may be difficult to detect, but if there is a group which has greater chances to produce a critical knowledge about it, then it is the group of those who are oppressed. Embedded in this conception is the idea that (a certain kind of) partiality is epistemically preferable to any (never really neutral) pretense of neutrality.

As Donna Haraway claimed thirty years ago, not all perspectives are equally well-positioned to criticize injustice, especially in its systemic forms: the standpoints of the subjugated must be centered, because of their knowledge of the many ways in which denial can be performed.

Behind the proliferation of alarmist voices claiming that #MeToo has gone ‘too far’, we can find precisely an attempt to reclaim the importance of situated knowledge.^[43] Among the most typical, reactionary ways of framing the issue of gender violence there is, indeed, the one that depicts it as a sort of communication problem between men and women – accordingly, the former would see as acts of gallantry or physiological displays of sexual interest what the latter would perceive to be harassment or worse. While such a rhetorical construction aims at establishing a fictitious epistemic equivalence between the two views – the old ‘he says, she says’ -, true hermeneutical justice would not call for a sort of arithmetic mean between the two, but for the adoption of a notably polarized, situated perspective. What the most radical sectors of #MeToo are trying to do is to overcome the traditional, televised imaginary we are all familiar with: the feminist (usually woman) being debated by the sexist (usually man) and then the (almost always male) host trying to find a middle ground between the two – that is, some more kind and smiling form of sexism. This is not, again, to reproduce a stereotypical divide between women and men, but to stress the importance of positionality in trying to redress what is probably the most ancient and entrenched form of hermeneutical injustice.^[44]

A final, complex point regards the very identity of the ‘group’ whose hermeneutical marginalization #MeToo is trying to end – or at least to reduce. Up to now, it is clear that a small number of famous, rich, mostly white women has constituted the most visible and influential part of this mobilization. On the one hand, if they had not spoken at all, they would have just reinforced by omission the dominant, patriarchal discourse (according to which sexual harassment and violence on the workplace are not a particularly significant issue).^[45] On the other, their relatively privileged position may involuntarily deepen the hermeneutical vulnerability of, for example, poor women. Following both Alcoff^[46] and Spivak^[47], I would argue that the best way for responsibly speaking for someone implies also speaking to her – and we will see in the next months if the Time’s Up initiative launched in Hollywood will be able (or willing) to establish a fruitful dialogue with wider segments of society. Only if #MeToo commits to the promotion of the strongly intersectional approach to feminist activism championed by the prominent social movements  of recent years will it be able to contribute to a truly successful fight for epistemic justice. Up to now, the #MeToo movement has enabled women not just to denounce with their own voice gender violence, but to do so starting from the context of workplace sexism. Such a socio-economic, institutional way to frame the issue is fundamental if we want to avoid the narrowly individualistic approach that juridical systems usually adopt in neoliberal societies.^[48]