Brock Turner and Testimonial Justice (Lorraine Cuddeback)

I have been thinking a lot about narratives and testimonies of late, in large part driven by reading Miranda Fricker’s book, Epistemic Injustice. In particular, I have thought of her work alongside the Brock Turner case, and the powerful, widely-read testimony offered by the woman who survived the assault. It is unfortunately routine to see the he-said-she-said of a sexual assault case picked apart in the media, the credibility of both sides more often than not being judged by who you sympathize with. Whether you side with the victim or perpetrator is often conflated with prejudices of gender, race, and class. The victim’s statement, disseminated a few weeks ago, provided a rare example where the victim’s narrative was able to shape the dominant social perception of the case.

Fricker’s thesis in Epistemic Injustice is that we make immediate, generally unreflective judgements about a person’s credibility when that person tries to communicate information. Sometimes, these judgments are negatively impacted by prejudicial stereotypes, which often operate not at the level of explicit belief, but at the level of our deeply-embedded social imagination. Over time, consistent prejudice against a person or a social group can form a person to doubt one’s own capability to testify (in the broad sense of offering information).  For feminists in particular, this generates a problem of hermeneutical injustice, where an entire social group (such as women) operate with a credibility deficit — even to the point of being unable to name their experiences, to narrate the injustices they suffer.

The ongoing battles about rape culture provide a clear example of the problem that Fricker is describing, and it is resurfacing in a variety of think pieces that respond to Turner’s conviction and sentencing. Time and again the note sounded in these (often ostensibly Christian) pieces is: “We don’t really know what happened.”

But we do. In the victim’s poignant narrative of her experience, we see how she learned piecemeal that she had been abused, used as an object while unconscious, totally unaware of what Turner was doing to her. She details the long, still-unfolding impact on her life of being crudely instrumentalized by Turner.

She even wisely names the role that narrative played in the case: “…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… My testimony was weak, incomplete.” The problem here is that her lack of memory is taken as a sign that she is not credible, that there is something more which happened that she cannot account for.

Instead, I think her inability to remember what happened is the story itself. Or rather, one part of a much larger story. To reduce the impact of what happened to her to what occurred during a missing few hours of her memory is to undermine her credibility to speak to her total experience, to all that has happened to her since waking up in a gurney, missing her underwear. Despite the power behind her testimony, those who wish to defend Turner (in the face of his conviction for a crime that has a notoriously low conviction rate) can only see the gap. This isn’t the whole story, they say. We need more details, they say.

It does not occur to them that, maybe, the victim’s memory loss is all they need. The gap alone says enough about her capacity to have engaged in any kind of sexual act.

The task that Fricker takes up, then, is to correct for prejudices that have a negative (indeed, ethical) impact on credibility judgments through the virtue of “testimonial justice,” or “a corrective, anti-prejudicial virtue that is distinctively reflexive in structure” (92). It’s a tall order, and Fricker doesn’t shy away from the challenges. To adopt this virtue of testimonial justice, we are asked to do hard, reflective work about our experiences of receiving testimony from others, to stare into the spaces where we experienced cognitive dissonance between our credibility judgment and the evidence placed before us. This requires an almost exceptional sense of self-awareness, and of the social narratives that have shaped us.

Turner’s story, his testimony, proved unconvincing, but his version of the story would not have had a chance if it had not been for the pervasive narrative in our culture that has reduced sex to an inevitability, to “twenty minutes of action,” as Turner’s father wrote, as if his son had gone running. At the same time, we continue to believe rape is the product of a villain, an evil mastermind prowling the night: “There is absolutely no way Brock went out that night with rape on his mind…Brock is not a monster,” wrote a friend in Turner’s defense.  But no one, not even Turner himself, would deny that he went out with sex on his mind.

Even the critics of rape culture who argue against the college hook-ups and binge drinking are buying into this narrative that 1) sex holds an overwhelming power, over men especially, and 2) that rape is something only “monsters” do. In this version of the story, sex is easy (for men) to have, but hard to avoid.

This is simply not true. It is actually quite easy to not have sex. We live most of our lives not having sex. We generally are not having sex when eating breakfast, or lunch, or dinner. We are generally not having sex when drinking a glass of wine or two with friends at someone’s birthday party. In fact, I spent my fair share of time at parties filled with dancing and drinking during my college career, and in all that time, I was never having sex.

An object at rest, generally stays at rest; an object not having sex generally stays that way unless some force shifts it in a new vector. And even then, the natural forces of friction will work against the newfound velocity. Sex takes energy. Turner had to cause the momentum, and then continue to overcome physical obstacles. At any number of these obstacles (walking, falling, removing clothing) he could have stopped. It would have been easy to stop.

Instead, he continued on. It is well known that power is more at play in sexual assault than desire; what causes rapists is when they think of sex as something they are entitled to because of the power they claim, reflexively or not. This, like Fricker’s credibility judgments, need not happen at the level of belief, but be a part of the social fabric that has formed a perpetrator.

This narrative of sex’s inevitability and necessity beyond rationality has had a profound effect on the shape of our social imagination, and it makes the reflexivity called for in Fricker’s testimonial justice difficult. To really face our responsibility in sex makes the mythos of it complicated. The good and the bad have to be laid side by side. Sex is never easy — even such revered Christian institutions as marriage do not make sex easy.

The biases we hold towards sex (whether negative or positive) shape how we treat rape victims and perpetrators, but the double bind is that it always rebounds on the victim. Sex is dangerous? Then the victim should have known better. Sex is good? Then she probably wanted it. It is time for Christians to start practicing a new virtue, to take up testimonial justice and face the hard questions we might otherwise avoid.

Lorraine Cuddeback is a PhD candidate in moral theology at the University of Notre Dame. Her research is in social ethics, particularly disability and theology, Catholic social teaching, and feminist ethics. Her dissertation is about ethics, practices, and theologies of inclusion for people with intellectual and developmental disabilities.