A Politics of Listening: Preventing the Retraumatization of Sexual Violence Survivors in the US Criminal Justice System through Narrative Reclamation
By Emma Toth
Abstract
The US Courtroom has always pursued ideals such as objectivity, the presumption of innocence, and the pursuit of justice. However, the investigation and litigation of sexual violence cases have consistently failed to uphold these values; instead, the system creates biased proceedings that retraumatize survivors who seek legal redress. Critical analysis of the narratives of victimhood, biases of the courtroom, and mistreatment of survivors exhibits the perpetuation of sexism and racism in legal contexts. Utilizing Miranda Fricker’s framework of epistemic injustice alongside intersectional analysis of high-profile cases, this paper analyzes the failures of the US criminal justice system with regard to sexual violence and suggests a restructuring of the process around care and listening.
Keywords
feminist legal studies, sexual violence survivors, sexual violence recovery, epistemic injustice, intersectionality, sexual violence cases, politics of listening, legal carceral system, criminal justice system
Introduction
Describing her approach to the investigation of serial rapist Marc O’Leary, lead detective Stacy Galbraith stated, “A lot of times people say, ‘Believe your victim, believe your victim [. . .] But I don’t think that that’s the right standpoint. I think it’s listen to your victim. And then corroborate or refute based on how things go” (Miller and Armstrong). While this concept of listening was key to Galbraith, it was not a standpoint shared by the investigative team previously involved in the case. Upon receiving a report of rape from the first victim of O’Leary, the initial investigators confronted and gaslit the woman until she admitted to making the story up—only for her report to be proven true three years later by Galbraith (Miller and Armstrong). While O’Leary was eventually caught and arrested, the mishandling of this investigation became a highly publicized example of how the US criminal justice system, here also referred to as the legal carceral system, can retraumatize the sexual violence survivors to whom it refuses to justly listen.
Although estimated rates of sexual violence are high for women and women of color in particular, the rates of reporting and prosecution remain dismally low for a reason; in legal contexts, survivors are often dismissed or misrepresented by the injustices that are not only consistent within, but foundational to current US legal procedures (Office for Victims of Crime). While any form of investigation or trial should be structured as an unbiased inquiry into the facts of a case, in sexual violence cases, the hegemonic influence of misogynistic sexual violence myths places a disproportionate value on the identity, actions, and character of the survivor while simultaneously devaluing their testimony and personhood. Operating within an inter-constitutive relationship between cultural myths and a historically prejudiced legal carceral system, a focus on “neutrality” in the courtroom obscures the ways in which the investigation, litigation, and public interpretation of sexual violence translates into hierarchies of victimhood and believability.
As theorized by feminist scholar Miranda Fricker, these narrative issues are based in both the hermeneutical and testimonial types of epistemic injustice, an injustice in which a person is wronged “specifically in their capacity as a knower” (1). Testimonial injustice occurs when someone’s testimony is granted less credibility due to prejudices related to their gender, race, sexuality, disability, accent, etc. (Fricker 1). Likewise, widespread testimonial injustice leads to hermeneutical injustice, the structural underrepresentation of marginalized experiences in the collective pool of knowledge shared by a society (Fricker 162). Absent from common understanding, marginalized individuals may struggle to make sense of their own experiences or communicate their experiences to others in the majority, such as investigators, judges, or juries (Fricker 147). In other words, “the powerful have an unfair advantage in structuring collective social understandings” (Fricker 147). Examining the treatment of sexual violence cases as a process of hermeneutical and testimonial injustice reveals that the trauma experienced in sexual violence—in which one is attacked in their “capacity as a subject [with agency]”—is exacerbated by the legal carceral system’s reliance on collective misunderstandings of sexual violence and mistrust in the survivor’s ability to produce a reliable narrative (Jackson 8).
Today, the phrase “Believe Women,” popularized by the #MeToo movement, has become synonymous with modern efforts to push back against sexual violence. Critics of “Believe Women” argue that inherent belief contradicts due process and that promoting this concept creates a biased criminal justice system. While the ideas of fact and belief seem to contrast, they are not necessarily contradictions. In the space between protecting innocent defendants and inherently believing survivors is the call for survivors’ stories and perspectives to be fairly heard, without preconceived notions or myths. While a form of abolition and institutional restructuring is undeniably required to equalize justice, this is unlikely to occur. Given these parameters, taking on different forms of engagement can disrupt the retraumatization of survivors.
Rather than an institutional change, a focus on the methodology can lead to a reexamination of the power structures in the legal carceral system and bring about a change in how it listens. In this way, a feminist politics of listening serves as an accessible methodology to deliver a type of justice and care to survivors beyond the prosecution and incarceration of assailants. The framework of listening developed in this paper recognizes the prevalence of testimonial and hermeneutical injustice occurring in these largely testimonial-based cases and seeks to prioritize the narrative and healing of the survivor. Likewise, this paper analyzes how the legal carceral system delegitimizes the stories of survivors, and suggests tactics shaped by a politics of listening to ameliorate this flawed structure.
Whom We Listen To
“Neutrality” in the Courtroom
The work of feminist scholars such as Miranda Fricker, Iris Marion Young, and Marilyn Frye argue that normalized standards within the legal carceral system that ignore and perpetuate systemic bias cannot be understood as “neutral.” Historically, the legal carceral system’s treatment of sexual violence has understood victims as objects rather than subjects. In their European origin, sexual violence laws understood rape as theft, a “crime against property, not person” (Tracey et al. 4). The word “rape” itself originates from the Greek word for “to steal,” reflecting how “a woman’s reproductive capacity” was property owned by her father or husband (Brown 6; Tracey et al. 4). Later American laws perpetuated this protection of male interests, creating “numerous procedural anomalies unique to [cases of rape]” that stigmatized and disadvantaged survivors in court (Tracey et al. 5). For example, laws required evidence of the victim’s resistance to the assault, allowed the victim’s sexual history and character to be admitted into evidence, and failed to acknowledge that women could be raped by their husbands (Tracey et al. 5). While many of these laws and procedures were reformed in the 1970s, widespread prejudice, sexual violence myths, and forms of epistemic injustice remain prevalent.
As recently as the 1980s, American judges would begin rape and sexual assault trials with some variation of “The Hale Warning”: “rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho’ never so innocent” (Chappell et al. 163). While no longer practiced in the common law, this sentiment of misogynistic skepticism prevails within the discussions and the treatment of sexual violence cases. A 1977 study of judges who had worked on rape cases in the Philadelphia Court system found that judges believed that “the worst error the criminal justice system can commit is to convict an innocent man” (Chappell et al. 163). Such statements underline a high level of judicial skepticism that conflicts with the credibility of women’s testimony—a narrative that is key in the context of a crime that is not just physical but personal and psychological.
Emphasis on objectivity and neutrality within the legal carceral system has created limited parameters that demand new forms of engagement to work against the active perpetuation of trauma and violence. Identity, considered both individually and collectively, is used to create and support hierarchies that are defined through categorization and “top-down” intervention. This process ultimately devalues the people the criminal justice system claims to serve. According to the 2018 National Crime Victims’ Rights Week (NCVRW) Sexual Violence Fact Sheet, “[over] their lifetime, an estimated 19% of women and 2% of men will have been raped, while 44% of women and 23% of men will experience some other form of sexual violence” (Office for Victims of Crime). Sexual violence has disproportionately impacted minority communities; rape and sexual assault are reported in higher numbers in communities of color, particularly for women of color (Office for Victims of Crime). These statistics have remained consistent over the past decade, alongside low rates of receiving victim services, low rates of reporting to police, and low rates of successful prosecution in the court.
The legal carceral system is comprised of individual actors with their own biases and experiences—often delimited by the prevalence of hermeneutical injustice—that will undeniably impact their work. As of 2020, 62.6% of lawyers are men and 83.5% of all legal occupations are held by white people (“Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino Ethnicity”). Men also hold 76.4% of protective service occupations (e.g., police, detectives) and white people comprise 74.5% of these occupations (“Employed Persons”). Since survivors of sexual violence are overwhelmingly women of color (Office for Victims of Crime), these statistics show an undeniable power imbalance and lack of representation. When those assigned to protect and administer justice share more identity characteristics with assailants than survivors, it clarifies why so many cases go unreported or are mishandled. Most individuals rendering legal decisions in these cases benefit from the same privileges that allow many sexual assailants to escape due sentencing. To have a system function on the judgement and interpretation of fact by such individuals requires addressing bias. Acknowledging these long-term, top-down failures is simply not enough; a significant shift must occur.
While a stance against neutrality might appear radical, introducing subjectivity may ultimately increase the system’s intended objectivity, decreasing the epistemic injustices that obscure prejudiced elements of criminal proceedings.
To redefine this system as inherently unneutral topples many of its principal pillars but allows for a new understanding of justice and care. While a stance against neutrality might appear radical, introducing subjectivity may ultimately increase the system’s intended objectivity, decreasing the epistemic injustices that obscure prejudiced elements of criminal proceedings. Incorporating a “bottom-up” narrative reframes institutional approaches to sexual violence litigation and investigation, but also expands those processes and notions of justice beyond the goal of incarcerating assailants. Focus on the determination of fact has occupied the courtroom to such an extent that it denies any space for processes of agency, expression, and healing. Grace Taluson argues that this is because “everything in our culture would like us to repress trauma, and shame is at the core of this,” and thus, “there doesn’t seem to be much room to grieve, complain, or have other kinds of reactions” (44). Crimes of sexual violence are uniquely physically and emotionally violent, and in seeking justice, every consideration should be taken towards healing survivors, not repressing their trauma. Healing begins with returning the subjectivity and agency that was revoked in the assault through the survivor’s emotional expression and the acceptance of the survivor’s narrative.
The Typology of Victimhood
Throughout every stage of sexual violence litigation, survivors are segregated into categories that simplify their experiences into hierarchies of importance and believability. This victim typology remains one of the most powerful tools to silence survivors’ stories. As these categories are largely based on the judge and jury’s interpretation of given evidence and survivor narratives, this process of categorization is a hermeneutical injustice because the misinterpretation of narrative is determined by societal sexual violence myths. Categorization not only impacts the well-being of survivors but also the results of the system—the defense used, the evidence admitted, the category of the crime, and the sentencing. Due to this bias, sexual violence cases often focus less on the facts of the alleged crime, and more on the character of those involved. As the Marc O’Leary case shows, “the credibility of the victim [is] often on trial as much as the guilt of the accused” (Miller and Armstrong). The conflation of a survivor’s story with a category of victimhood is the product of a legal carceral system that prioritizes the accused over hearing and understanding accusers.
There are three defenses for rape and sexual assault cases in the US court: that the rape did not occur; that the rape did occur, but the defendant is not the rapist (defense of identity); and that the rape was “consensual.” Simply put, these defenses propose that a survivor is either lying intentionally or is not believable. The final, contradictory defense is even common in high-profile and controversial cases and has the most dependency on victim typology. Judicial attitudes and behavior must be examined, since judges determine what evidence is admissible in court and how much bearing the evidence has on proof of consent. Circumstantial evidence ranks among the most valued by judges and can include such details as prior relationship, immediate outcry, time between incident and filing of complaint, flight of defendant, and cooperation with identification, among other factors. The circumstances are also informed by the characterization of the survivor into categories of motive, justification, and believability. These categories are defined differently by many scholars and judicial actors but can be simplified into the following three: the real victim, the consensual victim, and the vindictive victim (Chappell et al. 163; Ertman 2; Pietsch 136).
Dominant “Victimhood” Narratives
The “real victim” is a category, commonly coupled with the “stranger jumping out of the bushes” narrative, that dominates most sexual violence discourse. It is crucial to note that the “stranger jumping out of the bushes” is a rape myth that has influenced how all legal and social conversations around sexual violence are approached. This myth:
is [. . .] often used when warning women about sexual assault. [Women] are told [they] shouldn't go out late at night alone, especially in parks, and that [they] should carry pepper spray [. . .] to fend off violent attackers [. . .] the creepy guy in the park, the man in the hoodie walking closely behind you. (Fields 429)
Here, sexual violence is portrayed as violent, unexpected, and performed by a stranger. This narrative disregards the fact that 80% of rapes are committed by someone known by the victim and only 11% of sexual violence cases involve a weapon (“The Criminal Justice System: Statistics”). Beyond establishing inaccurate social perceptions, the “stranger in the bushes” myth appears in judicial language and perception, through references to “classic rapists” and “real victims.” As will later be analyzed, the real victimhood category not only perpetuates inaccurate narratives about sexual assault, but also deeply relies on hegemonic notions of race and femininity.
The category of consensual victimhood, described by some judges as “friendly rape,” “felonious gallantry,” or “assault with failure to please” (Chappell et al. 164), faces the most scrutiny in conversations surrounding sexual violence. The term “consensual victim” itself exhibits the category’s oxymoronic quality. Heavily criticized for prioritizing the innocence of the defendant, categorizing a victim as “consensual” discredits not only their story but also their character. Judges rank consensual victimhood as less credible than “real victimhood” and rely heavily on the interpretation of circumstantial evidence. A 2019 New York Times opinion piece exemplifies the characterization clearly: “she hadn’t acted like a rape victim. She’d had a rifle. Why didn’t she just shoot them? A real rape victim would have fought back” (Dostie). Of the three categories, the “real” and the “consensual” victim are most often compared by the public and in the courtroom. Additionally, while rape shield laws, introduced in the late twentieth century to curb the use of a survivor’s sexual history as evidence, have diminished the damaging subjectivity of interpreting such evidence, they do not fully ensure neutrality in the courtroom. The constricted, unrealistic parameters of real victimhood create such a limited category of credibility that any deviation constitutes falsehood.
The least credible victim category, the vindictive victim overlaps with consensual victimhood but is distinct in its perceived motivations. Judicial attitudes on this category are measured on “reflections of a woman's desire to get even with a man” (Chappell et al. 165). The nicknaming of the Philadelphia sex crimes unit as the “lying bitch unit” in the 1990s exemplifies the institutional misogyny present (Chemaly). A paucity of research supports claims that both assert and deny the use of false rape accusations as a means of revenge, resulting in this category being one of the most highly contested sexual violence narratives. Citing Catharine MacKinnon, lawyer Edward Greer argues that legal dominance feminists (LDF), such as MacKinnon, assert the value of believing survivors’ reports by emphasizing the small percentage of reported false rape accusations. Opposition to the vindictive victim contends that there is little to no evidentiary support proving an exact number of false rape accusations, and thus if “as many as a quarter of the men currently accused of rape are actually innocent, then the goals of LDF are truly destructive” (Greer 949). Debate around the characterization and basis for the vindictive victim is rooted in numerous valid sociopolitical concerns, but with a lack of substantial research to undergird any argument, scrutiny of this category must acknowledge its undeniably misogynistic construction.
The Intersection of Race and Gender
In an interview from The Politics of Rape: The Victim’s Perspective, Diane E. H. Russell asks Sonia Morell, a Black rape survivor, how her identity affected how she perceived her assault. Morell explains, “When it first happened, I thought I was carrying the burden that all black women carry. Now I feel that I'm just taking what all women have to take, but what all women should refuse to take” (135–136). She did not even recognize her assault as rape until “a rape victim told me about her experience, which was similar to mine” (135). Morell’s statements draw attention to not only the dangers of hermeneutical injustice but also the racial narratives that surround sexual violence.
A central focus on listening and narrative does not erase the social constructions and hierarchies that influence the legal carceral system, thus the need to question whom we listen to and how we choose to listen.
A central focus on listening and narrative does not erase the social constructions and hierarchies that influence the legal carceral system, thus the need to question whom we listen to and how we choose to listen. An examination of the “long historical entanglement between white supremacy and listening in the United States” (Stoever 2) can help analyze how race and gender interact within a politics of listening framework. In her book Hood Feminism, Mikki Kendall points out the popular racial stereotypes that portray “Black women and Latinas as promiscuous, American Indian and Asian women as submissive, and all women of color as inferior,” stating that “justice is not served by racism, no matter how hard it is peddled by politicians and white supremacist narratives as a way to protect women. Not replicating these harmful narratives is part and parcel of [sic] ending sexual violence against women” (59).
Additionally, Marilyn Frye’s analysis of uptake, or the reception and justification of the survivor’s anger, focuses on gender but can expanded to consider how different intersecting identities affect one’s likelihood to receive uptake. In describing the epistemological value of anger and how it is received, Frye argues that “anger can be an instrument of cartography” (94), referencing how the types of reception granted to someone’s anger can map one’s position in the social hierarchy. The ability to receive uptake and freely express anger is directly connected to one’s agency and influence, and according to several feminist philosophers, “in US culture, women's contempt is given uptake in a very narrow range of circumstances” (Bell 87). In her analysis, Nancy Nyquist Potter applies uptake to the courtroom setting: “the US Supreme Court can be said to give uptake to petitioners, when it considers an appeal, regardless of the outcome of the hearing” (152). A survivor’s allegation against a perpetrator can be understood as an expression of anger, and thus the results of that case become a form of perceived justification of the survivor’s anger. Through predetermining a survivor’s intention and character via categorization, the survivor’s story loses uptake, putting the survivor at risk of trauma through their loss of agency. Under Frye’s argument, there are inherent gender differences in this process that must be addressed, but an important point of inquiry is where gendered notions of uptake intersect with racialized narratives of anger and credibility.
In applying an intersectional lens to sexual violence court cases, it is crucial to acknowledge existing interlocking oppressions, especially while considering uptake. In a 2019 segment of All Things Considered, Mayowa Aina and Michelle Martin examine intersectionality while discussing Brittney Cooper’s book Eloquent Rage: A Black Feminist Discovers Her Superpower. Cooper argues, “the whole sort of American political system is designed to respond to white male anger and white male discontent” (qtd. in “Harnessing the Power of ‘The Angry Black Woman’”). She specifically contrasts Michelle Obama, who openly discusses being “labeled that angry black woman,” and Lindsey Graham who, during the 2018 Brett Kavanaugh trial, shouted, “this is going to destroy the ability of good people to come forward because of this crap” (qtd. in “Harnessing the Power”). Jessica Valenti speaks about this same trial on NPR months later, stating, “Christine Blasey Ford was widely believed even by Republicans. But what happened was even though they found her credible, they [the Senate] did not find her story important enough to take action [justifiable]” (“'Believe Me' Author Calls for a Simple but Radical Shift Beyond 'Me Too'”). Cooper and Valenti point out each side of the double bind that sexual violence survivors face in sharing their stories: either their identity as victims discredits their ability to tell their stories, or their stories discredit their identity as victims. The continuous racist and sexist labelling of Obama, the discreditation of Blasey Ford’s testimony, and Kavanaugh’s eventual confirmation speak to how both the public and the political world permit, police, or privilege the behavior of individuals with different racial and gender (among other) identities. If the nationally observed testimony of a straight, white, cisgender, financially privileged doctor is so easily discredited, one must ask: What further obstacles are faced by individuals who do not possess those privileges?
One case that examines such privileges and one that scholars use to interrogate an instance of the “real rape” myth is the Central Park Five case. This case involved the rape of a white woman in Central Park, allegedly committed by five Black and Latino male teenage suspects who did not know the woman. In 1989, the five teens were convicted on charges of murder, rape, and assault, charges which were later found to be based largely on police-coerced confession. They were not released until 2002 when DNA evidence surfaced and someone else confessed to the crime; and while they were granted a large settlement, “the City of New York denied any wrongdoing” (Harris). The conviction of these teens was largely supported by the New York City mayor, the public, and prominent figures such as Donald Trump, who reportedly spent approximately $85,000 in New York newspapers calling for the deaths of the Central Park Five—who were at the time often referred to as “The Wolfpack” (“The Central Park Five”). While the jogger’s name was kept anonymous (until 2003), her identity as a white woman was public knowledge (“The Central Park Five”). Through the national attention this case received, one can see the uptake her privilege awarded her—and the prejudice against the five teenagers. The Central Park Five case, according to Chezia Carraway, “perpetuated the mythology that ‘real’ rape only occurs to wealthy white women” (1304) and maintains a racialized narrative around males of color as violent criminals and a threat to white femininity. While “the suitable paradigm for [real victims] might be the ‘stranger leaping out of the shadows in the dark alley situation’” (Chappell et al. 164), its foundation, like other sexual violence narratives, is built on a single axis understanding of gender and femininity that defines who deserves to be heard and protected.
People v Turner
“When I was told to be prepared in case we didn’t win, I said, I can’t prepare for that. He was guilty the minute I woke up. No one can talk me out of the hurt he caused me. Worst of all, I was warned, because he now knows you don’t remember, he is going to get to write the script. He can say whatever he wants and no one can contest it. I had no power, I had no voice, I was defenseless.”
– Chanel Miller (qtd. in Baker)
The highly publicized 2016 rape case, People of the State of California v Brock Allen Turner, or People v Turner, saw narrative not only take the forefront of legal proceedings, but dominate the conversation around sexual violence. In 2015, around one o’clock a.m., two Swedish exchange students saw Brock Turner rape Chanel Miller, who was unconscious, behind a dumpster on Stanford University’s campus. When the two students called out to Turner, he fled the scene; however, they were able to catch him and call the police. Miller was taken to the hospital where she was treated for bruises, abrasions, and genital trauma, but only learned the details of her own assault by reading about it in a news article a week later. Although the deputy had informed Miller that she had been assaulted and hospital staff informed her that she had been “potentially penetrated by a stranger” (Baker), she had no details or memory of what had happened. Upon learning these details, Miller expected a formal apology and a settlement, but instead learned that Turner had hired a lawyer and intended to overturn the case in trial. Though Miller had two witnesses, bodily abrasions, and compelling medical evidence, Turner was able to walk away from the trial with a six-month sentence, only three of which he served, followed by two years’ probation and registration as a sex offender. People v Turner serves as a clear example of how the current system and the use of narrative create harm within the litigation process and its aftermath.
Occurring during the midst of the #MeToo movement and growing conversation around campus sexual violence, Turner’s light sentencing garnered widespread criticism; People v Turner quickly became the epitomal case for injustice against sexual assault survivors. Miller initially kept her name from the public, but the Turner defense team and media reports soon took advantage of her anonymity and lack of memory. Relying on a consensual rape defense, Turner and his lawyer employed every tool of victim categorization to dismantle Miller’s story, portraying her as a drunk, promiscuous, and consenting victim. While Turner’s attorney questioned Miller on what she was wearing and how serious she was with her boyfriend, media and court records consistently reminded the public that Turner was a young, promising college athlete with a loving family.
Miller addresses this discrepancy in her victim impact statement: “In newspapers my name was ‘unconscious intoxicated woman,’ ten syllables, and nothing more than that. For a while, I believed that that was all I was. I had to force myself to relearn my real name, my identity. To relearn that this is not all that I am” ( qtd. in Baker). Miller’s victim impact statement, read directly to Brock Turner during the 2016 trial, exposes the mishandling of the case and reclaims the narrative in a powerful manner. The statement covers not only the details of that night but also its immediate and lasting impacts and the issues she saw in the handling of her case. Before the release of her book, Know My Name: A Memoir, in September 2019, Miller finally revealed herself as the victim. Her choice to claim her identity in the case, she states, was largely an effort to “humanize [herself]” after the victimization and powerlessness she experienced during the trial (Sangal).
The role of a victim impact statement (VIS) is specified by the Department of Justice to provide “an opportunity to express in your own words what you, your family, and others close to you have experienced as a result of the crime. Many survivors also find it provides some measure of closure to the ordeal the crime has caused” (“Victim Impact Statements”). Victim impact statements work as a platform to encourage a politics of listening and a consideration of survivor storytelling. Yet Miller, who delivered one of the most public and compelling VIS in recent years, still felt that “[she] had nothing to offer [and that her] testimony was constantly useless” (Sangal). Miller shared her frustrations in multiple interviews after the trial, noting that her position as a victim and her standing in relation to Turner were interpreted through a lens of misogyny, racism, and privilege. Her statements both in court and following the trial point out the privilege awarded to Turner due to his race, gender, class, and social standing, as well as the silencing and victimization imposed upon her due to her identity as a biracial Asian American woman.
Interpretation of identity in People v Turner eventually overtook the case, obscuring the important facts and details that should be central to a criminal trial. Turner’s identity played an explicit role in his sentencing, as Judge Aaron Persky (who has since been removed) stated concerns that “a prison sentence would have a severe impact” on Turner (Astor). As a white man, Turner’s depiction in the court and in the media stands in stark contrast to the court and media perspectives on the Black and Latino teenagers of the Central Park Five, all ages 14–16 at the time of their arrest. While Turner, age 19 at the time of his arrest, was portrayed by lawyers and family as youthful and innocent, the Central Park Five were dehumanized and discussed as though they were adults. A 2014 study finds that Black children are viewed as older, less innocent, and more responsible for their actions than children of other races (Goff et al.). In a system founded upon “innocent until proven guilty,” cases like People v Turner exemplify how presumptions of innocence are not dealt evenly.
In a system founded upon “innocent until proven guilty,” cases like People v Turner exemplify how presumptions of innocence are not dealt evenly.
The intersection of sexism and racism imbedded in this core value has both unjustly criminalized innocent children and obstructed justice for survivors. Miller’s story and VIS certainly affected the public but were not given the deserved traction in court. Though some tools and structural provisions necessary to amplify survivors’ voices and encourage listening are present within the legal carceral system, they are not being utilized due to pervasive prejudice practiced by those in the court. Nonetheless, a practice in listening can prove effective in making changes that may prevent future survivors from facing similar experiences in court, as exemplified by the California State Legislature later adding two bills that changed the law surrounding sexual assault due to the public outrage following the 2016 trial.
Listening in Practice
The Rape, Abuse, and Incest National Network (RAINN) describes the role of the survivor in a “proceeding is to answer each lawyer’s questions and any questions the judge might ask.” Systematically limiting the expression of survivors to this extent must be abolished. In cases that rely so heavily on narrative, the subjective experiences of survivors should be central in a trial—without interruption through constant questioning of detail and fact. The process of questioning in any court is deeply valuable but has historically been used to test the reaction of or challenge lawyers in an effort to distract or derail—essentially silencing the victims—rather than to obtain case details. While judges and lawyers’ questioning undeniably plays a crucial role in any trial, these cases demand they take up less space to allow for free epistemic expression. Utilizing tools such as the victim impact statement (VIS) as integral parts of trial proceedings, rather than as symbolic healing practices, can limit the manner in which these trials victimize and harm survivors.
As People v Turner demonstrates, the VIS is an acknowledged participatory right in the courts, but does not necessarily play as important a role in proceedings as it should. Several instruments allow survivor participation in criminal justice procedures, all of which should be emphasized and further tailored to survivors’ needs, but the VIS is a crucial tool for expediting survivors’ recovery (Lens, “Delivering a Victim Impact Statement”). Research on the VIS has focused on the therapeutic impacts and motivating factors behind its delivery. Findings indicate that sharing emotions related to an event is a key part of recovery (Lens, “Delivering a Victim Impact Statement”); however, a large empirical gap appears in research on judicial attitudes towards the VIS, as well as a need for continued research on the potential secondary victimization of such tools. Placing a greater emphasis on the VIS must follow research on its heterogeneous impacts and consider what “works for whom and under which conditions” rather than simply “what victims want” (Bogaerts et al.). Challenging the homogeneity and perceived neutrality of the judicial system must begin with a restructuring of methods through an intersectional lens.
Tackling the issues of typology requires a reevaluation of these practices via intersectionality and queer theory. Mikki Kendall uses the 1944 Recy Taylor case to further emphasize the need to center women of color in addressing sexual violence. Recy Taylor was a 24-year-old Black mother who was kidnapped and raped by six white men at gunpoint, which she reported to the police. Though her case was dismissed twice in court and her assailants were not indicted despite having witnesses and one of the men admitting to the crimes, her case became a precursor for the civil rights movement, as it garnered the attention of and successfully mobilized prominent activists across the nation. Her court case, though an abhorrent failure of the criminal justice system, became integral to the fight for the rights of women (especially women of color) and survivors of sexual violence. Throughout history, the organizing and work done by women of color to combat sexual assault have been as consistent as the injustices committed against them by the US legal carceral system. To address sexual violence only through the frame of gender is not just limiting—it erases the labor done by and violence conducted against women of color, thus perpetuating a cycle of racism and sexism. Intersectionality is more than a tool to view sexual violence—it is the key to ending it.
Intersectionality is more than a tool to view sexual violence—it is the key to ending it.
This demands a move away from current processes that emphasize objectivity and categorization, and instead towards processes that prioritize subjective agency for survivors and recognition of the epistemic injustices that can occur through top-down interpretation of narrative. The Marc O’Leary case, the Central Park Five, and People v Turner show that the results of sexual violence cases in the courts are often predetermined by victim categorization and a simplified interpretation of events—aspects that prejudice results and stifle the healing of a survivor. The issue of categorization has long plagued survey and social research because of concerns about reification or the exclusion of specific experiences. This same question applies to the process of victim categorization: while the role of the legal carceral system is undoubtedly to try and confirm facts, the disciplinary borders of this practice can be pushed beyond current limited, homogenous practices. Many research theories and practices can be applied to subvert these patterns but focusing on survivors’ stories through an active practice of listening is an essential first step in recognizing the heterogenous experiences of survivors.
Should a survivor choose to pursue a criminal trial, many states have a Victim’s Bill of Rights that enumerate their rights throughout the trial process. The key right of survivors to be heard and participate in criminal justice proceedings, however, is often not prioritized. Efforts to centralize survivors in their own trials must be shared across all states and centralized throughout every step of criminal proceedings. A 2019 guide for counsel published by the Supreme Court began this process by allowing lawyers two minutes to advocate for their clients without questioning by the justices. Oral arguments, typically lasting about thirty minutes, have consistently been interrupted by justices, often preventing the incorporation of narrative. This guide has come forward “amid a political culture of escalating loudness, [in which] the justices have taken a symbolic step back toward respect and attention” (Editorial Board). The shift towards “respect and attention” must also be applied towards the participatory tools provided to survivors.
Conclusion
Acts of sexual violence rip agency from survivors, and, too often, the legal and judicial proceedings that follow engage in similar trauma. The pattern of abuse against women in the US court and culture demonstrates that radical change is necessary to create spaces for healing and safety. In response, feminist scholarship asks that key questions be considered: Who gets away with using violence? Who is most commonly subject to it? Why does it occur? Although a form of abolition may be necessary long-term, a politics of listening offers a means of improvement to the current situation.
Although “no rules or formalities can ensure that people will treat others in the political public with respect [or] really listen to their claims” (Young), certain institutional shifts can create more space for respect and listening. Cases like Chanel Miller’s clarify that the legal carceral system and the US sociopolitical culture stifles the potential of tools such as victim impact statements; however, these tools could be used to encourage a politics of listening, a change that demands sexual violence be understood through the frame of survivors’ experiences rather than hegemonic rape narratives and victimhood typology. A politics of listening holds not only social significance for sexual assault survivors but is also an important intervention in widespread epistemic injustice and may encourage more accurate proceedings and redress (Young). Legal spaces are crucial forums for intervention and, through a politics of listening, could become crucial forums for healing.
Definitions
Victim: The term “victim” is only used in this paper in reference to specific criminal proceedings and judicial tools, and in all other contexts the term “survivor” is used.
Legal carceral system: The intersecting court, prison, and policing institutions that incarcerate individuals in order to uphold the law; the understanding of incarceration as criminal justice.
Rape and sexual assault: Due to differing state definitions, both rape and sexual assault are referred to as sexual violence, with exceptions for specific language used in legal cases.
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Author
Emma Toth is a writer from Seattle, Washington. She graduated from Western Washington University with degrees in Political Science and Women, Gender, and Sexuality Studies. She is currently preparing for the LSATs with intention to apply to law schools in Fall 2021, where she will ideally continue to study gender and sexuality in the legal field.