1In a performative perspective of language, speech is not only a matter of saying things, but, as John Austin put it, of doing things with words (Austin 1962/1975). In Austin’s terms, speech acts have illocutionary force and, when they satisfy certain felicity conditions, in saying something we can do things such as refusing, ordering, protesting, witnessing. Shedding light on the political power and oppressive potential of language, theories of illocutionary silencing and discursive injustice pioneered in the early ‘90 by Jennifer Hornsby and Rae Langton show how identity prejudice can shape the pragmatics of speech, limiting in some circumstances the speaker’s ability to do things with her words. By looking at patterns of silence through the lens of epistemic injustice (Fricker 2007), it can be noted that under conditions of gender oppression the illocutionary disablement (Langton 1993: 315) and perlocutionary silencing (Medina 2021: 190) faced by women largely depends on sexist hermeneutical resources, conceptual lacunae and interpretative gaps that compromise the climate of reciprocity (Hornsby, Langton 1998) between speakers necessary for uptake. This paper takes a close look at practices of silencing and discursive injustice in connection with sexist ideology (Hänel 2018; Haslanger 2019), and considers the authoritative context of the crime trial for gender-based violence as a fertile site for investigating empirically the correlations between communicative failures and epistemic neglect (Medina 2020; 2021).
2Epistemic neglect, in José Medina’s sense, occurs “when a subject’s epistemic agency becomes negligible because the epistemic significance of the subject’s contributions is unfairly diminished or rendered ineffectual by being given defective uptake or no uptake at all” (Medina 2021: 187). On Medina’s view, this phenomenon of “being abandoned as a subject of communication and knowledge” (Medina 2020: 108) can amount to forms of silencing in which issues of credibility and issues of communicative neglect are intertwined. While Medina (2013; 2021) focuses primarily on silencing, in this article I adopt his performative approach to epistemic exchanges to explore a case in which the speaker’s testimony is not only silenced and distorted, but also extracted (McKinney 2016) under conditions of compromised epistemic and communicative agency.
3The paper proceeds as follows. In Section (§2) I define the theoretical terrain underlying my analysis: (§2.1) introduces the notions of illocutionary silencing, discursive injustice and perlocutionary silencing by focusing on cases where sexist ideology plays a crucial role in shaping the normative and epistemic background of the conversational context; (§2.2) outlines Medina’s performative approach to epistemic exchanges (2013) by highlighting the interplay between communicative failures and epistemic neglect. Once outlined the requisite theoretical background, in Section (§3) I offer an analysis of some instances of discursive and epistemic injustice that can occur at the trial stage of the Italian legal proceeding for gender-based violence. Building on Medina’s work, I argue that when sexist conceptual resources such as rape myths and gender-based prejudices are used by the judge as an epistemic lens through which to define what counts as sexual violence, they do ideological work by setting unfair constraints on the communicative and epistemic agency of the witness in the obtaining of her testimony (§3.1). Drawing on Lackey’s multi-directional model of credibility assessments (2023) and adopting McKinney’s notion of extracted speech (2016), I then argue that these constrains can sometimes amount to forms of agential testimonial injustice (Lackey 2023) in which the agency of the witness is undermined, and in which the epistemic and performative force of her speech acts varies drastically depending on how consistent the content of her declarations is with the ideological frame chosen by the judge (§3.2). Selected examples from the hearing transcripts of a recent Italian trial for gender-based violence will be used to support the core of my argument.
- 1 Following Searle, Langton defines uptake as the audience’s recognition of the speaker’s illocutiona (...)
4The Austinean approach to silencing was introduced by Langton and Hornsby (Langton 1993; Hornsby, Langton 1998) in defending the philosophical plausibility of Catharine MacKinnon’s silencing thesis against pornography. MacKinnon, in the early ‘90, objects to pornography on the ground that it silences women by making the world of sexual abuse unspeakable for them (MacKinnon 1987; 1993). By adopting the framework of speech act theory, Langton (1993) has suggested that pornography may silence women by preventing them from successfully performing certain illocutions (e.g., refusing sexual advances), and has qualified silencing in terms of uptake failure.1 On this view – which assumes that the hearer’s uptake is necessary for illocuting – a person is illocutionarily silenced if she is unable to perform the speech act she intends to perform in speaking, because the speech act in question cannot receive the right uptake, and thus misfires.
5The classic example of illocutionary silencing concerns men’s inability to recognize the illocutionary intention behind a woman’s “No” to sex due to a pornographic sexual ideology that propagates false beliefs about women in sexual contexts, such as “Women always want to have sex” or “Women enjoy abusing sex”. According to Langton, while there might be cases of perlocutionary frustration in which the hearer recognizes the act of refusal performed by the woman but fails to obey, illocutionary silencing occurs when women’s “No” does not count as an act of refusal because the hearer fails to recognize the utterance as a refusal, and uptake is not secured (Langton 1993: 54). In this case, the speech act of refusing becomes unspeakable.
6Such illocutionary silencing, insofar as it is “a systematic effect of inhabiting a disadvantaged social position” (Kukla 2014: 442), can be thought of as a kind of limit case of discursive injustice, which in Kukla’s words occurs
when members of any disadvantaged group face a systematic inability to produce certain kinds of speech acts that they ought, but for their social identity, to be able to produce – and in particular when their attempts result in their actually producing a different kind of speech act that further weakens or problematizes their social position (Kukla 2014: 441).
- 2 It is relevant to note that whereas Langton adopts Searle’s intentional reading of uptake, accordin (...)
- 3 See Caponetto 2021.
- 4 Medina’s account of perlocutionary silencing aims to highlight one of the ways in which the America (...)
7Discursive injustice occurs, for example, when women’s claims that an action is sexist are downgraded from truth-claims to mere expressions of a feeling of discomfort (Kukla 2014: 452). In this case, on Kukla’s view, the performative force of the speaker’s speech acts is not silenced, but rather distorted by the interpretative resources of an audience influenced by identity prejudice.2
While Langton defines silencing as a form of illocutionary disablement and Kukla interprets discursive injustice in terms of uptake distortion, Medina has recently claimed that we should frame as instances of silencing also those cases of epistemic neglect in which the intended perlocutionary effects of a speech act are blocked or short-circuited by the kind of uptake received, or lack thereof (Medina 2021: 190). Perlocutionary effects are the consequential effects our speech produces on our audience’s thoughts, feelings, and attitudes. When the speaker’s perlocutionary objective to affect the hearer in some way is not satisfied, the failure lies at the perlocutionary level.3 Consider the case of a woman who endures ongoing sexual harassment in the workplace, and finally decides to complain to her boss. The boss understands her communicative intentions and considers her words as credible, but he underestimates the issue and takes no action. Here, the illocution of the complaint is not short-circuited or annulled, nor is it mistaken for something else, but the lack of attention the speaker’s complaint receives also results in some kind of silence. On Medina’s view, in this case the speaker faces perlocutionary silencing, since her voice is rendered ineffectual (Medina 2021: 191).4
8As I will attempt to show in (§3), these types of silencing and discursive injustice are often encountered by women who give testimony in court about rape, and about gender-based violence more broadly.
9By looking at feminist theories of silencing and discursive injustice it can be noted that sexist ideology plays a crucial role in the hampering of the performative force of the speaker’s speech acts. Indeed, the paradigmatic cases of illocutionary disablement and discursive injustice consist in dysfunctional communicative dynamics where gender-based prejudices, rape myths and other sexist epistemic resources compromise the climate of reciprocity between speakers necessary for uptake. Building on Medina’s account of epistemic injustice (2013; 2020), I suggest that by looking at uptake failure and epistemic neglect as intertwined phenomena we can shed better light on how sexist hermeneutical resources, conceptual lacunae and interpretative gaps between speakers shape patterns of silence in specific communicative contexts. In (§2.2), I highlight some correlations between communicative failures and epistemic neglect drawing on Medina’s performative approach to epistemic injustice.
10In Medina’s view, silencing is one of the areas in which we cannot separate communicative and epistemic agency. In Medina’s words,
it is because of impoverished communicative dynamics without reciprocity and uptake that epistemic trust cannot be established and credibility is undermined; and when epistemic subjectivity and agency are seriously compromised, the subject’s communicative capacities cannot be recovered and she will enjoy, at best, an inferior voice in the interaction (Medina 2013: 95).
11For this reason, we need to pay attention to the performative and pragmatic aspects of communicative dynamics to fully appreciate the patterns of silence that are part of epistemic injustice (Medina 2013: 91). In defending a communicative approach to epistemic injustice, Medina offers an expansion of Miranda Fricker’s analysis of silencing that accounts for the way testimonial and hermeneutical insensitivities feed each other, and in which performative negotiations figure prominently. For the purposes of this paper, in outlining Medina’s account I will focus specifically on the phenomenon of silencing in relation with epistemic objectification (§2.2.1) and hermeneutical injustice (§2.2.2). Let’s examine these briefly in turn.
- 5 Note that Kukla considers testimonial injustice a subspecies of discursive injustice (Kukla 2014: 4 (...)
- 6 For a further discussion of how prejudice bears on credibility discounting, see Tuerkheimer 2017.
12Epistemic objectification, in Fricker’s terms, is a type of epistemic silencing consisting in treating someone as a mere source of information, rather than as an active epistemic agent (Fricker 2007: 132). According to Fricker, examples of morally bad kind of epistemic objectification can be found in central cases of testimonial injustice, which occurs when a subject is afforded a credibility deficit in virtue of a prejudice on the part of a hearer that targets her social identity (Fricker 2007: 135).5 Consider the example of a rape victim whose accuses against her partner are dismissed by someone holding sexist attitudes as overly emotional complaint. In this case, the speaker suffers testimonial injustice along with epistemic objectification, since she is disqualified as a trustworthy informant due to significantly identity-prejudicial attitudes that undermine her status as a subject of knowledge.6
- 7 In the Italian judicial system, the witness examination consists of three stages: direct examinatio (...)
13While according to Fricker a speaker is epistemically objectified when she is undermined “in her capacity as a giver of knowledge” (Fricker 2007: 133; emphasis added), on Medina’s view a speaker can also be undermined in her capacity as a producer of knowledge, that is, “as an investigative subject who asks questions and issues interpretations and evaluations of knowledge and opinion” (Medina 2013: 92). Indeed, the voice of a speaker can be constrained and minimized even when her status as informant is recognized, but her epistemic agency is limited and subordinated to that of the inquirer’s. Bringing forward an aspect I will return to in (§3), I will consider the context of the witness examination in the Italian crime trial as an example of the phenomenon under discussion. At this stage of the criminal proceeding, the witness testifies under oath by answering a series of questions asked by the public prosecutor, the attorneys and the judge.7 Here, the reversibility of roles in communication, inquiry and interpretation that typically guarantees equal epistemic exchanges is a priori restricted by a rigid normative code based on legal principles that affects the epistemic and performative power of all participants in the conversation. The witness examination is a codified, asymmetrical and strategic conversation, and while those having institutional roles have the power to ask, control and select with their questions the topics discussed, the witness has limited possibilities on both an epistemic and communicative level. As I will aim to show in (§3), under conditions of oppression, this asymmetrical epistemic and communicative context can become fertile ground for epistemic and discursive injustices that further limit the possibilities of the witness by constraining and minimising her status as a subject of knowledge. There might be cases where the speaker is treated as a mere source of information and regarded as an unreliable epistemic subject, and this would be a case of testimonial injustice in Fricker’s sense. But it may also be the case that the speaker is treated as an informant and is still silenced due to hermeneutical insensitivities on the part of the hearer. The judge, for example, can lead the examination by formulating oppressive questions that unjustly prevent the victim from successfully communicating the facts as she sees them, thus making epistemic negotiations limited and defective. This last aspect is intrinsically connected to hermeneutical injustice.
14On Medina’s account, silencing is typically accompanied by processes of struggling to make sense (Medina 2013: 95) in which issues of credibility and issues of intelligibility are intertwined. According to Medina,
testimonial injustices become not simply likely but almost inescapable when the persistence of hermeneutical gaps renders certain voices less intelligible (and hence less credible) than others on certain matters, and their attempts to articulate certain meanings are systematically regarded as nonsensical (and hence incredible) (Medina 2013:96).
15This failure in communicative and interpretative responsiveness is a crucial aspect of hermeneutical injustice. The standard view is that hermeneutical injustice consists of “having some significant area of one’s social experience obscured from collective understanding owing to hermeneutical marginalization” (Fricker 2007: 158) – where to be hermeneutically marginalized means to belong to a group which does not have access to equal participation in the generation of social meanings (Fricker 2013: 1319). One of Fricker’s examples of hermeneutical injustice concerns the disadvantage of women who were sexually harassed in the workplace before the term ‘sexual harassment’ was coined. This conceptual lacuna (Fricker 2007) meant that an area of women’s social experience was obscured from collective understanding, so that victims of sexual harassment lacked the possibility to accurately conceptualizing and successfully communicating the wrong done to them. While Fricker’s initial focus was on instances of hermeneutical injustice in which the subject herself is unable to make sense of her own experience, in subsequent works she expands her analysis to include cases in which individuals who suffer hermeneutical injustice are entirely clear what is happening to them, but lack the power to introduce into the collective understanding those conceptual resources that would make their own social experiences intelligible to the wider community (Fricker 2013; 2016). For example, a rape survivor may fully understand the violence she has suffered and have the concepts and language to make sense of her experience of being sexually abused, but still cannot expect to communicate it successfully to relevant institutional bodies due to hermeneutical gaps affecting them. This is in line with Medina’s communicative interactionism, according to which given the heterogeneity and fluidity of discursive possibilities in communicative exchanges, it is not always the case that hermeneutical gaps render experiences unintelligible for everybody in the same way and in every communicative dynamic. That said, whereas Fricker considers hermeneutical injustice as a purely structural non-agential phenomenon (Fricker 2007: 159), on Medina’s view it is because of our testimonial and hermeneutical insensitivities that hermeneutical gaps are formed and maintained, and our communicative interactions can work to accentuate or to alleviate the patterns of silence that have been socially cultivated. For this reason, to properly diagnose hermeneutical injustice – and epistemic injustice more broadly – it is of the utmost importance to look at who is communicating what to whom in the communicative processes in question (Medina 2013: 97).
16In the next section, I will build on Medina’s performative and context-sensitive account to explore the communicative dynamics between a woman who give testimony in court about sexual violence and a judge examining her. I will look at a context of oppression where the wronged subject – in this case, the rape survivor – is forced to inhabit a communicative environment in which she cannot exercise her hermeneutical capacities to make sense of her experience of being abused, or she can only exercise them at high costs that those in privileged social positions do not have to pay (Medina 2013: 101). In this case, as we shall see, hermeneutical injustice results from the presence of sexist distorting concepts that limit or block (Falbo 2022: 354) the application of available and more accurate concepts.
17Sexist ideology (or sexism) can be defined as a collection of unjust social meanings that provides a ‘stage setting’ for action by organizing social agents into binary gender relations of domination and subordination (Haslanger 2019; Hänel 2018). This coherent cultural framework, when embedded into our discursive practices, shapes the epistemic and normative landscapes that coordinate us in conversational contexts, and constraints the production and reception of knowledge in unjust ways. By focusing on the Italian legal system, in this section I will argue that when sexist ideology orients the judge’s discursive practices, the complainant’s statements can be silenced, distorted or elicited through speech, giving rise to multiple forms of injustice that wrong the witness on a communicative and epistemic level. In developing my argument, I will support it with two examples from an Italian legal proceeding for gender-based violence.
- 8 For an account of faulty concepts as hermeneutical injustice, see Jenkins 2021.
18The epistemic and practical authority with which the law establishes the interpretative and discursive possibilities to define what counts as sexual violence and the codified power imbalances characterizing the legal setting make criminal trials for gender-based violence a context in which sexist ideology can make certain speech acts of testimony unspeakable for rape victims. Consider the case of marital exception rule: in the Italian legal system until 1976 sexual violence perpetrated by a husband against his wife did not constitute a crime in the eyes of the law, since it was deemed that in a marital relationship the wife ought always to be consenting. Thus, before 1976, this faulty legal concept in the law made impossible for women to report rape when it was perpetrated by their spouse.8 What we now call acquaintance rape was formally recognized as just sex, and women could not legitimately accuse their husbands for it.
- 9 See, e,g, Taslitz 1999; Ehrlich 2001; 2012; Tuerheimer 2017; 2021.
- 10 See art. 609-bis of the Italian Crime Code.
19Despite decades of progressive law reforms, nowadays women do have the right to give testimony in court about acquaintance rape, but still their speech acts may be silenced, distorted and considered untrustworthy or irrelevant. Sociologic and legal theories on gender oppression in trial discourse show that this is – at least partially – because of the systematic adoption of sexist hermeneutical resources in the enforcement of the law.9 Indeed, despite the fact that several hermeneutical resources have been introduced into legal discourse to improve the legal category of ‘sexual violence’, the wording of the Italian law on this crime still hinges on the legal concepts of ‘violence’, ‘threat’ and ‘abuse of authority’, and it is often the case that the judge applies an already narrowing law by adopting rape myths, gender-based prejudices and other sexist social meanings as interpretative lens.10
20In that follows, I will show a case of sexual and domestic violence in which the judge constrains and invalidates the testimony of the complainant by implicitly adopting the so called onere di resistenza, a sexist interpretative criterion institutionalized by the Italian law until the 1960s which required the victim to prove that she strenuously resisted the offender while being abused (Caletti 2023; Goisis 2012; Virgilio 1997). I call this interpretative criterion sexist because it is rooted in a patriarchal model of sexuality under which, among other things, women are naturally inclined to provoke men’s ‘uncontrollable’ sexual impulses and to get aroused by the aggressiveness of their ‘seducer’. According to this archaic standard, rape is always committed by strangers, and is perpetrated with overwhelming physical force (the so called ‘vis atrox’). Moreover, while the current legal notion of sexual violence includes any bodily contact that invades the sexual freedom of a person, according to the onere di resistenza standard sexual violence necessarily involves the penetrative act (Caletti 2023). As we shall see, through the lens of this distorting interpretative tool – formally abolished but sometimes still adopted by some judges intentionally or not – acquaintance rape can be easily reframed as just sex.
21The hearing transcript at issue concerns the examination (esame incrociato) of the complainant in an Italian legal proceeding for sexual and domestic violence recently ended with a full acquittal. The prosecution is brought against a man charged with the crimes of domestic abuse and bodily injury, because he mistreated his wife and minor daughter living with him; and with the crime of sexual violence, because on several occasions, he forced his wife to undergo sexual acts by introducing objects such as vegetables and sex toys into her genitals against her will. Here, I will focus specifically on the charge of sexual violence.
22The hearing was held in open court, lasted about two hours, and the complainant, although having difficulty expressing herself in Italian because she was non-native speaker, faced the examination without the aid of an interpreter. Although I will not dwell on this last aspect, it is important to note that the language barrier has been an additional serious obstacle to witness evidence.
- 11 All quoted fragments are taken from the official transcripts. For privacy reasons, I do not provide (...)
23The first example concerns the concluding moment of the examination, that is, the Court examination carried out by the judge (henceforth J). At this stage, after almost two hours of hearing, the complainant (henceforth C) has already described several times the ways in which she used to be “forced” by her husband to undergo sexual acts that she “didn’t want to do”. She repeatedly stated that she used to be raped “under threat”, and that she used to submit to her husband’s will “out of fear of worse violence”11. Despite these clear declarations about the coercive nature of the sexual acts, the judge asks a sequence of questions by assuming the victim’s consent:
Example 1
J: When did the use of these objects begin?
C: Two years old of the child.
J: I guess he first proposed to you, like, I don’t know, “let’s vary a little bit”?
C: No, I was forced to do it…
24Confronted with the declarant’s negative response, the judge then requires the complainant to prove that she physically resisted:
J: I see…And so you were reacting? Were you struggling a little bit? Were you trying to…?
C: I was saying, “Look I don’t like them, they hurt, and then it’s not fair for you to treat me this way”, I mean….
J: Whatever, you said…yes, and so you were resisting in some way physically?
C: Yes, so much that he was grabbing me by the hair, I couldn’t go anywhere. (emphasis added)
25The fact that the judge takes the victim’s sexual consent for granted suggests that, while perfectly consistent with the legal notions of ‘violence’ and ‘threat’, the witness’s previous claims about the coercive nature of the sexual acts received defective uptake. The judge seems unable to grasp that sexual violence can be perpetrated within marriage and without overwhelming physical force, and she fails to frame the type of violent act reported as sexual violence. As a result, the witness’s speech acts performed to prove that she has been sexually assaulted fail to invite the appropriate response on the part of the Court and to produce the intended perlocutionary effects. The same applies to the witness’s subsequent claim about her lack of consent, which meets with a harmful countermove that distorts and minimizes her attempt to testify that she verbally expressed her dissent (J: Whatever, you said… yes, and so you were resisting in some way physically?). The hermeneutical insensitivities that limit the horizon of understanding of the judge is here aggravated by an incredulous stance that bring the Court to consider the witness as an unreliable epistemic subject, an aspect confirmed by later passages in which the judge states that the complainant “could have left the room” and that “it is hard to believe that a person is unable to resist a vegetable”. Faced with a complainant who is aware of the wrong suffered and perfectly capable of communicating it, the judge filters the facts through the lens of the onere di resistenza standard, and all the statements incoherent with this interpretative criterion are considered as untrustworthy or downgraded from truth-claims to mere expressives (Kukla 2014) that can be dismissed as irrelevant and even mocked.
26I consider this to be a good example of epistemic neglect. In this passage, the complainant is wronged in her capacity as a knower, and the epistemic significance of her contributions in the constitution of evidence is rendered ineffectual because of a communicative and epistemic climate that prevent a proper uptake. She is treated as a mere source of information when regarded as an unreliable epistemic subject, and even when believed, her status as a subject of knowledge is nonetheless undermined due to sexist hermeneutical resources that deprive her words of their performativity. The next example aims to show that the very same hermeneutical insensitivities (Medina 2020) and distorting concepts that give rise to discursive injustice and credibility deficit can bring to an unwarranted credibility excess that overturns the testimony to the detriment of the witness.
27The communicative exchange in Example 2 follows on from the one in Example 1. Although the victim has in the interim reiterated that she was “forced to submit to her husband’s will”, the judge insists on verifying whether the victim physically resisted:
Example 2
J: So, I’m asking: were you physically resisting, and thus placing your own physical resistance to the courgette or…?
C: No, I didn’t want to at first, I didn’t want to, but he was insisting, insisting, insisting, “you have to do that or I’m going to take the child away from you”. He was always threatening…
J: Ah, so it was moral violence, not physical, psychological violence!
C: Yes…
J: We understood that it was a physical type of resistance, which was a little bit more…
C: No, no.
J: Was he holding you by the arms? I don’t know, by the legs? By your neck? While he was using the courgette?
C: No.
J: So, let’s say, he was convincing you by good or bad means?
C: Yes, yes. (emphasis added)
- 12 Note that it is unclear what exactly the complainant agrees on when granting that the husband was c (...)
28These few lines represent a crucial moment for the acquittal of the defendant. As soon as the victim claims to have resisted the violence without resorting to physical force, the judge considers her statement as valid proof of the defendant’s innocence, downgrading psychological violence and threats to mere acts of persuasion. The witness’s affirmative answer at the end of the sequence, elicited by the fallacious question “So, let’s say, he was convincing you by good or bad means?” causes her to fall apparently into contradiction, allowing the Court to definitively disprove what she had previously stated about the coercive nature of the reported violence.12 Thereby, in the eyes of the Court, the witness’s testimony as a whole is untrustworthy. Below is an excerpt from the acquittal verdict:
- 13 From the Reasons for Judgment. Note that the conclusion regarding the exclusion of having been held (...)
The Court considers that the complainant’s trial testimony does not comply with the canons of logic and intrinsic coherence, being indeed hardly credible.
With reference to the sexual abuse, the complainant, a few minutes apart, makes conflicting statements: first she claims to have submitted to the man without uttering a word fearing retaliation, then she claims to have resisted him strenuously, finally she even excludes having been held by the hair.13
29To capture the epistemic and communicative wrongs displayed through this last example, we need to move beyond accounts of discursive and epistemic injustice that focus on how power constrains speech and that define testimonial injustice in terms of credibility deficit. Here, sexist ideology does not merely silence and distort testimony. It operates making the oppressed subject actively complicit in the invalidation of her own testimony. Drawing on Lackey’s (2023) multi-directional model of credibility assessment and on McKinney’s (2016) notion of extracted speech, I will now turn to the problem of extracted testimony.
30On Lackey’s model, “the wrongs inflicted upon speakers do not involve a linear regression of deficits leading to an ever-increasing discounting of credibility, but a multi-directional attack that twists and turns, resulting in excesses and deficits that perpetrate injustice alike” (Lackey 2023: 148). Whereas according to the standard view of testimonial injustice, when a bias or prejudice toward members of oppressed groups targets their testimony and is unjust, it is always manifested as a deficit, on Lackey’s view social identity combined with bias or prejudice does not necessarily lead to distrust. Rather, it can lead to a credibility excess, even a massive one (Lackey 2023: 151). Example 2 and the reasons for the judgement show that the epistemic wrong done to the witness results in both a credibility discount and an unfair credibility excess. In addition to undergoing testimonial injustice in Fricker’s sense, I suggest the victim here also suffers what Lackey has termed agential testimonial injustice, which occurs “when testimony is extracted from speakers in a way that bypasses, exploits, or subverts their epistemic agency and is then given an unwarranted excess of credibility” (Lackey 2023). Indeed, the complainant’s attempts to prove the defendant’s guilt are thwarted by the incredulous, intimidating and minimizing attitudes of the judge throughout the hearing, and at the final stage of the Court examination she ends up being cornered and powerless in the eliciting of her testimony. Once her epistemic agency has been undermined, the witness seems to fall into the interpretative trap set by the judge’s deceptive questions, and only when her declarations meet the Court’s expectations, they become evidence.
- 14 McKinney defines communicative agency as “the ability of an agent to express attitudes to others an (...)
31By looking at this case through the lens of extracted speech (McKinney 2016), we can detect the communicative wrongs done to the witness in the extraction of her testimony. On McKinney’s view, a speaker experiences unjust locutionary extraction when she is wronged either via the process of having her speech elicited, or via producing an utterance that serves to wrong her (McKinney 2016: 266) – where elicited speech is speech “uttered in order to fulfil a special set of intentions of an interlocutor, or a procedure that functions as such” (McKinney 2016: 267). In the case under discussion, the complainant is wronged in both ways: the content of her utterances is elicited by oppressive questions that undermine her communicative agency,14 and she is made to produce speech that licenses future wrongs against her (McKinney 2016: 265) – primarily, the acquittal of the man who abused and raped her.
- 15 It is relevant to note here that yes-no questions are those that merely confirm the propositional c (...)
32Whereas McKinney’s account of extracted speech focuses on the locutionary act (McKinney 2016: 263), the performative account I adopt in the present work highlights nicely the performative dimension of extracted speech, and its connection with the testimonial and hermeneutical dysfunctions fostered by sexist ideology. The examples given above show that the performative force of the witness’s speech acts varies drastically depending on how consistent the content of her declarations is with the ideological frame adopted by the Court: the more the content adheres sexist ideology, the more the speech act counts as truth-claim. By looking at Example 2, it can be seen that these content-dependent variations bring the Court to trust only the witness’s statements that invalidate her testimony about sexual violence. A few quick yes-no answers elicited by the judge’s questions at the end of a two-hour long hearing gain more performative and epistemic power than all the other statements uttered by the complainant with her own hermeneutical resources to prove that she had indeed been abused15. As a result, testimony as a whole is considered unreliable, but the isolated statements consistent with sexist ideology and unjustly elicited by the judge receive an unwarranted excess of credibility, and are taken as evidence to motivate the verdict of acquittal.
33The analysis provided in this paper highlights the productive power of sexist ideology, and the ways it operates through speech in the institutional context of the crime trial for gender-based violence. By endorsing Medina’s performative account of epistemic injustice and by integrating it with the philosophical tools of agential testimonial injustice (Lackey 2020; 2023) and extracted speech (McKinney 2016), I showed that the very same sexist hermeneutical resources that shape patterns of silence can make oppressed subjects produce speech that deny their own experiences of sexual and domestic abuse, giving rise to multiple forms of epistemic and discursive injustice that range from silencing to extracted testimony.
- 16 I am grateful to Claudia Bianchi and Katharine Jenkins for their generous feedback on multiple vers (...)
34The example case offered reveals the paradoxical state of powerlessness and complicity endured by a rape survivor whose epistemic and communicative agency is both compromised and exploited in the obtaining of her testimony. While Lackey’s account of agential testimonial injustice permits to identify the epistemic wrongs of this unjust condition, I hope to have shown that a performative account of epistemic exchanges can be fruitfully used to detect and counteract those unjust discursive practices through which a rape survivor can be actively made complicit in the denial of the violence she has endured.16