Abstract
Testifying to sexual assault can re-traumatize a victim-survivor. This article applies a psychoanalytic framework to existing debate to provide a new interpretation as to why this is still the case despite legal and policy reform. The trauma of testifying to sexual assault is located at the same site where a victim-survivor imagines the law understands and transforms an experience of sexual assault. The sexual assault victim-survivor’s testifying voice is both a medium for fantasy and a violent disruption to it, paradoxically constituting and imposing a violence to their subjectivity. Violence is inflicted through the testifying victim-survivor’s act of speaking, in directing their voice toward the law, and in the ideology associated with sexuality which coats voice and informs fantasy.
I. Introduction
I felt betrayed and cheated by the law, for, in the end, I know that I was misled into telling my painful story, shouting it yet remaining silent.
1
Reforms scatter modern criminal justice court policy and processes to address the re-traumatization of victim-survivors testifying to sexual assault. These reforms represent a counter-culture to the assumed therapeutic value of the courtroom experience. However, the experience of testifying to sexual assault remains traumatic. 2 Significant inroads still need to be made towards a therapeutic jurisprudence model. 3 This article provides additional insight into why the act of testimony is rarely transformative, but rather a repetition of trauma, by improving our understanding of how the voice of the victim-survivor lacks recognition and understanding in the process of providing testimony of sexual assault. It does this by employing a Lacanian framework to supplement the expanding empirical analysis of re-victimization.
A number of issues, including low levels of reporting and evidence gathering, 4 see only a small number of sexual offenses proceed to trial. 5 If a case does proceed to trial victim-survivors may be required to testify to their experience in a courtroom presided in by a Judge or Magistrate. Legislative and process reforms have been made to move towards a therapeutic jurisprudence model which encapsulates the understanding that interaction with the law can facilitate healing. Reforms intended to protect victim-survivors include the increased use of screens and closed-circuit television in the provision of evidence, and a minimization of the number of times victim-survivors are required to give evidence. 6
The research is important because it attempts to explain how despite legal reforms that are designed to protect victims in the courtroom, those who testify about sexual assault potentially gain no therapeutic value from the experience, and actually incur a form of re-victimization. The quote which introduces this article is an example of a victim-survivor’s experience of re-victimization. It illustrates how a violence occurs not just in that the victim-survivor may be required to be in the same room as the defendant and through the discrediting tactics adopted by a defense counsel.
The presumed therapeutic value of testifying to sexual assault is exemplified in works of Henry 7 and Laub 8 who highlight the presumed therapeutic value associated with testifying to violence, the link between speech and survival, psychological relief; the need to have witness to trauma. Laub 9 identifies speech’s inadequacies in communicating pain. He highlights speech as enabling an individual to construct a new framework for understanding their sexual assault however it also represents the site where the trauma is re-enacted.
Young, 10 in her analysis of rape trial transcripts and discussions with legal personnel, identifies how legal discourse reduces the victim-survivors voice of any empowering potential. In addition to Young, 11 Dancig-Rosemberg, 12 and Taslitz, 13 other theorists who have outlined re-victimization in the courtroom experience include feminist and legal scholars such as Du Toit 14 and Naffine 15 who offer insight into the traumatization of victim-survivors symbolic violence of sexual assault. Larcombe, 16 Bumiller, 17 and Matoesian 18 also demonstrate how testifying can continue an experience of being controlled and dominated.
Within this debate, there is limited research on how the testifying voice of victim-survivors functions in relation to fantasy and how this contributes to the victim’s subjective experience of violence. This article applies a psychoanalytic methodology to explore the subjectivity of the victim/survivor in the process of testimony.
This article offers new insight on the re-traumatization, or what Bumiller refers to as their ‘‘double victimization,’’ 19 of victim-survivors who testify to sexual assault, by considering a psychoanalytic perspective on how a victim-survivor’s voice, as an exchange with the law, can contribute to the re-experiencing of trauma.
The psychoanalytic lens provides insight into how the victim-survivor’s voice functions in relation to fantasy, as a site of violence, when testifying to the law. Lacanian interpretations of speech and fantasy suggest voice is a tool by which the subject can negotiate their ‘‘lack-in-being’’ in front of the Other as the ‘‘one-who-knows,’’ who can confirm or guarantee being. 20 The voice of a victim-survivor testifying to sexual assault replicates this process.
The victim-survivor’s testifying voice reveals their fantasy, as an imagined scenario of recognition and understanding by the law as Other, and ultimately for the Other to ‘‘make right’’ their sexual assault. The assaulted individual imagines they have lost desirability or visibility in front of the Other, and voice represents an opportunity to re-engage. The victim-survivor participates in a vocal exchange with the law as they imagine their testimony to conceal the Other’s inconsistent ear and transform the framework for understanding their sexual assault.
The victim-survivor’s healing fantasies become exposed to a violation when considering the functions of voice and the law’s status as a viable healing Other. Victim-survivors, when testifying, expose their vulnerability not within a supportive context but within a potentially punitive, judgmental one. One victim-survivor states ‘‘by the time I found the strength within myself to put an end to my silence … here comes the judge and wipes it out with mere words.’’ 21 As a result, testimony may not be transformative; instead, it may represent a repetition of trauma for the victim-survivor as the listening Other, despite its promise of alignment, is not an intimate, safe presence that cradles the violated survivor but is rather unpredictable, objective, doubtful and potentially deaf. The victim-survivor, in utilizing voice to express pain and desire to the law, performs a violence to their own subjectivity.
Voice is both a medium for fantasy and a disruption to it. The violence to the victim-survivor’s subjectivity (as the victim-survivor’s feelings, desires, perception of self) occurs in the thwarting of their fantasies. This violence is generally (but not always) psychological, and the process often occurs within the victim-survivor’s unconscious. The violence encompassed in voice can not only be regarded as the imposition of social or institutional practices on the victim-survivor when they testify, but can also be applied by the victim-survivor to her/himself. The violence to subjectivity both results in and can be defined in terms such as anxiety, fear and distress; it can also be understood symbolically as the act of castration.
In discussing victim-survivors trauma this article does not suggest that the personal and diverse experience of testifying to sexual assault can be generalized, but rather furthers questioning of the assumed therapeutic value of speaking about sexual assault in the context of testimony. Deeper consideration needs to be given to why, in directing their voice towards the law, victim-survivors expose their desire for understanding and acknowledgment to a violence.
II. Methodology
The methodological design of this research consists of a multidisciplinary theoretical basis. Research on trauma and testimony demonstrates both an assumed therapeutic assumption associated with voice and also various theories on why testifying to sexual assault may be traumatic. Psychoanalytic theory of voice and fantasy provides a new interpretation of the experience of testifying to sexual assault. In addition, Feminist theory gives further definition to the specific meanings associated with sexual assault which inform the fantasy and symbolic violence experienced by victim-survivors.
Feminist, psychoanalytic, and postmodern theory are entwined within this research article’s interpretivist epistemological framework, which informs both the research argument and its methodological design. Investigating the emotions of victim-survivors does not suggest a fixed, transparent reality, shared or independent from ideology. The meaning that the law represents for the victim-survivor, and thus what they may anticipate from the law in understanding their sexual assault, is culturally encoded. The assumptions underlying this article’s argument; that the testifying to sexual assault is both the articulation and experience of violence, are consistent with most contemporary qualitative ontological positions in which, according to Snape and Spencer, ‘‘the social world is regulated by normative expectations and shared understandings.’’ 22
Feminist, psychoanalytic and postmodern theory provides valuable methodological tools of analysis to dismantle conventional understandings of the law and contribute to a growing consciousness surrounding the experience and emotional needs of victim-survivors who testify. This research on voice and fantasy aids investigation into the role of wordless desire expressed through voice, and provides an enhanced understanding of sexual assault trauma and testimony.
The work of Lacan 23 and other psychoanalytic theorists such as Žižek, 24 Dolar 25 and Rogers42 frame the insight on fantasy, voice and the law referenced or referred to by this research project. This framework sheds new light on the role of voice in the violence victim-survivor’s experience when testifying. Lacan and other psychoanalytic researchers referenced in this article provide a guide or template to understanding how subjectivity is negotiated with the Other, in this case the law. While the Lacanian processes of negotiating subjectivity with the Other could be argued as deterministic, this article suggests that the fantasies the victim-survivor brings to the law are ideologically informed.
The meanings that inform the imaginary of sexual assault victim-survivors are ideological constructions of sexuality, female subjectivity, and sexual assault. Feminist theorists such as Du Toit, 26 Young, 27 Bumiller, 28 and Naffine 29 highlighted the misogynist nature of sexual assault and how the neutrality of sexual assault laws mask both the patriarchal paradigm of the law and a non-gender neutral crime. The violence of sexual assault is replicated in the experience of domination when victim-survivors participate in an exchange with the law which does not currently represent an adequate acknowledgement or enabling of an empowered subjectivity.
This article also gives precedence to the speech act. Butler’s 30 bringing together of psychoanalytic and gender theory is primarily utilized to demonstrate how the speech act injures as it constitutes subjectivity. The victim-survivor, in an attempt to be recognizable when speaking, reiterates power structures which sustain and pose a violence to both subjectivity and the body. This research argues that in the victim-survivor’s application of language to voice, an already-violated body becomes an unknowing body, and an unreliable body is made problematic in the state of testimony.
III. Trauma, Sexual Assault and Testimony
Rape is one of the most violent and systematic ways in which the gender hierarchy is (re) created and (re-) inscribed.
31
[There exists a] therapeutic assumption that speaking about traumatic experiences alleviates the psychological burden of silence and repression at both the individual and collective level.
32
The experience of testifying to sexual assault is generally understood to be traumatic. 33 Trauma is said to be evident in such places as the courtroom experience, in language’s inadequacy to express pain, and in judgment by the law. 34 While the experience of trauma in testimony is not unique to sexual assault, sexual assault and its testimony represent distinct meanings and needs for a victim-survivor. Sexual assault, and the trauma of testifying such an experience in front of the law, encompasses a specific symbolism and imaginary.
Drawing from Bergoffen and psychoanalytic theory, Du Toit highlights the communal-symbolic signification of sexual assault. She defines sexual assault as ‘‘a sexual injury which constitutes an injury to the whole person or subject of the victim,’’ 35 which has damaging consequences as to how one relates to oneself and others. Du Toit believes this conception of self is not consistent with Western philosophical tradition and the gendered injury of sexual assault is hard to detect in gender neutral laws as it is hidden in a ‘‘naturalized sexual hierarchy of sexual male domination.’’ 36 In so, Western sexual assault law undermines the victim-survivor’s possibility for sexual agency and consent. 37
Changes have been implemented in the justice system to minimize the emotionally violent impact on those testifying to sexual assault. Remote witness facilities may be used and measures are in place in the hope that the judge and criminal proceedings may be more sensitive to the individual testifying to sexual assault. The laws themselves also change. While changes have been implemented in the criminal justice system, the experience of testifying to sexual assault is still considered to be traumatic. What has remained consistent is that the victim-survivor’s testimony is directed toward, and considered by, the law.
The knowledge that testifying to sexual assault may be traumatic does not prevent some people from testifying, nor does this knowledge necessarily provide victim-survivors with an escape from testimony’s violence. So why do victim-survivors still testify? While motivations are complex and varied, restoration, empowerment and control are terms often used to account for why some individuals persist with testifying to sexual assault. This implies the victim-survivor often anticipates that their interaction with the law in testifying will result in an emotionally healing transformation. 38
In the quote that begins this section, Henry identifies the therapeutic assumption that to translate sexual assault trauma into language through speech alleviates a victim-survivor’s pain. This is demonstrated in statements from victim-survivors such as: ‘‘in the filing of the complaint I am saying ‘enough silence and down with victimization.’’’ 39 The therapeutic assumption that surrounds testimony is based on the notion that speaking about sexual assault ‘‘heals’’ the victim-survivor. Speech is described as enabling an individual to construct a new framework for understanding their sexual assault. 40 To limit contemplations of testimony to speech, as communication through language and its enabling role in the reframing of trauma in the victim-survivor’s mind, does not acknowledge or allow enough space to adequately investigate the victim-survivor’s complex relationship with the law outside the realm of the spoken word. This researcher’s critical engagement with literature surrounding psychoanalytic theory on the voice provides a framework for understanding how a victim-survivor’s testimony can both constitute and violate their subjectivity.
IV. Testifying Voice – A Violent Process
1 Psychoanalysis
He thus speaks now, but his speech has become suspicious because it is merely a response to the failure of his silence, when faced with the perceived echo of his own nothingness.
41
The sovereign is imagined to have the capacity to castrate, but also the capacity, if his/her love is secured, to offer a way out of castration.
42
Lacan highlights, in the quote above, the volatile relationship between speech and subjectivity. Theorists such as Agamben also argue that in criminal trials the individual testifying ‘‘becomes witness to its own disorder, its own oblivion as a subject.’’ 43 Psychoanalysis provides a framework for understanding why a victim-survivor’s testimony replicates the feeling of ‘‘nothingness’’ which may have been experienced when being sexually assaulted. Psychoanalysis encourages an understanding of reality as being simultaneously created and revealed through an interactive dialogue. However, it is not only the act of sexual assault or the process relating speech to subjectivity, but the cultural understandings of sexuality and sexual assault which can heavily inform the victim-survivor’s subjectivity and the imaginary that they bring to the law in testimony.
Lacan suggests not only that culture is imprinted on language, and thus its medium of speech, but also that the unconscious is structured like a language. 44 Lacan refers to language as possessing culture, meaning being imprinted on words, and voice its vehicle. 45 Dolar, Žižek and Butler expand on this idea to suggest culture is not innate but something we perform, often signifying meanings which undermine our desire. 46 This does not suggest a hidden ‘‘reality’’ exists, but rather that meaning is produced through an individual’s never-ending dialogue masked by an impression that culture is innate. This understanding provides insight into how a victim-survivor’s words can mask the symbolic exchange that occurs through voice between the law and the victim-survivor when testifying. 47
The psychoanalytic concept of the voice as object enables the victim-survivor’s testimony to be understood symbolically as castration, as a cut, lack or loss, and thus performing a violence to their subjectivity. In order to perceive voice as loss, as a violation or disruption of what victim-survivors imagine to be the restoration of a disrupted symbolic order, a number of assumptions must be accepted. This article relies on the assumption that the Other occupies the position of audience for the violation to subjectivity to be heard.
This article proceeds to demonstrate that when a victim-survivor testifies, they form a relationship with the law. The law is epitomized in the judge who occupies the position of fantasized Other. The law/judge is imagined by the testifying individual as embodying a master discourse, as that which knows or has knowledge. In addition to the assumption of the law as Other, is the assumption that subjects anticipate an alignment with the Other’s desire.
The law as Other, sovereign or otherwise, encapsulates the promise of an escape from oblivion; but as in the case of victim-survivors directing their voice towards the law, it also encapsulates the symbolic violence of castration. Castration is an appropriate metaphor for the violence experienced in testimony as victim-survivor’s testimony can be understood as an attempt to gain, what Rogers describes as, ‘‘desirability before a potentially abandoning or castrating Other; the father, the sovereign, the Lacanian (big O) Other, from whom decisions will be, or will be imagined to be, administered.’’ 48 The law can also be considered as the sovereign-Other, as defined by Rogers, who adds that the sovereign-Other promises an escape from oblivion. 49 A victim-survivor’s state of mind after testifying to sexual assault (sometimes regardless of the trial’s outcome) often reflects how they are regarded by the judge, as well as how the judge allows the defense to treat them. Essentially, their feelings reflect the way in which they and their narrative are received by the authority. The consideration of voice provides further insight into the relationship between victim-survivors and the law and the possible consequence of re-traumatization.
V. Voice
It is as if the speaker’s own voice hollows him out and in a sense speaks ‘‘by itself,’’ through him.
50
Voice is not simply a neutral medium for the words of the victim-survivor. Dolar describes three elements of the voice. The first element he describes is the voice as sound: the utterance deemed senseless and threatening without the word. Secondly, he identifies voice as a medium for language, the logos: that which tames by giving structure and understanding to the voice, constructing speech as the ‘‘intelligible voice.’’ 51 And thirdly, he discusses the voice as object: that which Lacan refers to as ‘‘object petit a.’’ 52 The object voice signifies the object that is lost, cut off in the utterance.
Voice, while signifying a presence, also paradoxically represents an absence. 53 The utterance signifies an excess, as the revealing of ‘‘too much’’ need. This is consistent with Dolar’s notion of voice as a surplus of exposure which results in shame. 54 Due to the victim-survivor’s utilization of voice in testimony, their vulnerabilities exist as loss and as exposure. While testifying, the victim-survivor reveals an interior, a hidden intimacy, which has the effect of being obscene and/or uncanny. 55
Dolar presents voice as existing not only at the junction of language and body, but also at the bind between the subject and Other. Dolar uses a Venn diagram of two overlapping circles to demonstrate this junction. 56 This junction, which demonstrates the position occupied by voice in the relationship between testifying victim-survivors and the law, can also represent each other’s lack. The victim-survivor’s voice is an interaction, imposition or ‘‘cutting’’ into the law, which results in an unavoidable and interdependent lack. Each of these is imagined by the victim-survivor to have the ability of covering or revealing the other’s lack, but these fantasies of the victim-survivors, i.e. of recognition and concealing an absence, are violently compromised by the voice: as object, as loss. Teasing apart the signification of voice (that is, how voice relates to the fantasies of the victim-survivor in testimony) helps to understand the trauma embedded in the interaction between the victim-survivor and the law.
VI. Fantasy
A fantasy emerges to canalise and redirect a subject’s otherwise unspeakable feelings. Attempts to transform such a fantasy, however minimally, may be therefore experienced as (and, indeed, may well be) an attack on the subject itself.
57
The advent of adequate understanding is the advent of the most implausible and preposterous fantasy of all: that there could be a neutral objective understanding of ‘‘sexuality.’’
58
The voice of a victim-survivor is the medium not only of pain but also of fantasy, the imagining of a restorative exchange with the law. The violence is not only in how fantasy relates to voice, but in fantasy encompassing the negotiation of complex and naturalized cultural representations of sexual identity. The following section will discuss the meanings associated with voice and sexual assault victim-survivors, in more detail.
Testimony, as encompassing an exchange with the law through voice, requires the Lacanian understanding of fantasy adopted by Dolar to be expanded. Fantasy can be understood as that which is unique to an individual, the lens through which they view reality, organize and tame their desire. An individual may or may not be conscious of their fantasies. Lacan suggests fantasy exists in the temporal space between speech and understanding. 59 Voice is situated at the core of fantasy formation: as Dolar claims, ‘‘at the origin of fantasy there is a kernel materialized by the voice.’’ 60 The victim-survivor’s voice constitutes and threatens, mediates and exposes, their fantasies surrounding testimony.
The victim-survivor’s fantasy, the motivations carried in voice, can be considered in terms of Saussure’s parole, 61 as the component of speech where properties of desire are revealed. Parole connects speech with both voice (phoneme) and the object’s ‘‘cause-of-desire.’’ Ragland believes parole brings the real into language. 62 In this sense, parole is that which embodies both the truth of trauma and the reality of pain, while informing the victim-survivor’s fantasies of testimony. Integral to understanding the motivations and dramatic vulnerabilities of testimony is the victim-survivor’s fantasy of the restoration of desirability, which Clemens and Grigg identify above as being sensitive to attack, 63 and how this functions with voice.
Although the victim-survivor’s fantasies are directed towards the law as Other, it is often an indirect relationship. A victim-survivor may not be conscious of their anticipation of a new framework for understanding their testimony of sexual assault, and this is generally not communicated through language. Voice represents an outlet for fantasy, in terms of the expression of unspeakable feelings. 64 It is therefore the tool or medium through which fantasy can be imagined by the victim-survivor to be both understood and realized by the law.
Understanding, as suggested by Dolar in the quote commencing this section, exists as the most preposterous fantasy of all. Dolar states: ‘‘fantasy functions as a provisional understanding of something which eludes understanding.’’ 65 The introductory quote of this article supports this notion of a fantasy relating to the anticipation of transformation and dismay that the law does not understand and respond to their needs: a victim-survivor states “I felt betrayed and cheated by the law … shouting it [my story] yet remaining silent.” 66 The violence of voice occurs in the mediation; i.e. in realizing that understanding is not possible, but also that voice results in the experiences of loss and non-alignment. The voice of the victim-survivor enables doubt and the possibility of objection, and also signifies the final point at which fantasy is violated, the traumatic point where the victim-survivor is to be inevitably misunderstood.
VII. Interpellation
The victim-survivor’s testifying voice both constitutes and violates their fantasy of transformation through the process of interpellation. Interpellation, in the context of testifying to sexual assault, can be understood as that which enables the victim-survivor’s desired completion to be recognized by the law while simultaneously revealing a lack.
Interpellation is the process that fundamentally constitutes subjectivity. An alignment with the Other in testimony is imagined by the victim-survivor to restore a ‘‘whole’’ body politic. 67 Dolar identifies interpellation as another name for the voice, as that which ‘‘sustains social injunctions and symbolic mandates.’’ 68 Interpellation enables the victim-survivor to imagine being recognized and recognizable. In the victim-survivor’s pursuit of identification and acknowledgment, they must subscribe to this process which reinstates their subordination.
The encompassed and unavoidable ‘‘failure’’ of interpellation is situated in the ultimate and necessary submission of the subject. Subscribing to the process of interpellation sees the articulation of sexual assault through the framework of testimony as the ‘‘traumatic impossibility’’ 69 : of both the victim-survivor’s and of the law’s imagined completion. Voice signifies the victim-survivor’s unfulfilled fantasy of filling (or at least covering) the Other’s lack, and simultaneously their own.
Voice, as the victim’s pursuit of presence, acknowledgment or understanding by the law, reveals a void in the subject. Voice also reveals the impotence of the law to fill the lack revealed by voice. Žižek describes this process as the ‘‘paradox of fantasy’’:
[I]t is the frame co-ordinating our desire, but at the same time a defence against ‘‘Che vuoi?,’’ a screen concealing the gap, the abyss of the desire of the Other.
70
The repetition of trauma that can occur when victim-survivors testify replicates this process of interpellation. The violence of testifying to sexual assault lies in the victim-survivor’s fantasy’s paradoxical encapsulation. The paradox exists predominantly within two folds: firstly, the presence embedded in voice, which coats an inevitable absence; and secondly, the victim-survivor’s assumed imaginary recognition by the law as sovereign-Other whose love is ‘‘flighty, fickle and is without regular and enduring desire.’’ 71 These two enfold, or at least they join at the fold, in the sense that the victim-survivor’s voice fulfills an act of imagined desirability by presenting their voice as the object which could fill the void in the Other.
The victim-survivor’s testimony signifies potential inclusion into the law’s symbolic network. However, as Young states, testimonies can ‘‘re-enact the violence which has led to the victim’s presence in court.’’ 72 Instead of re-narrating identity, testimony represents repetitive displeasure, or what Žižek refers to as ‘‘Che vuoi?,’’ 73 the fantasy that sees speech seeks what it does not desire to seek. 74 The victim-survivor’s desire for completion is dependent on the articulation of violence, which symbolizes a violent loss. The articulation of trauma and an imagined reaching out to the Other highlights the victim-survivor’s lack, and reinstates an imaginary knot of servitude. 75 The victim survivor’s use of voice causes them to sacrifice that which they hope to achieve: to be whole, understood and desirable in the eyes and ears of the law.
The victim-survivor has a fantasy of the Other’s imagined ability to offer a way out of castration; this goal is innately compromised by the process of interpellation, but also in the law occupying the Other. The victim-survivor’s transformative fantasy relies on particular anticipations of being heard; it encompasses an imagining of the law’s possession of consistent, empathetic ears.
VIII. The Law as Other
Despite advances in therapeutic jurisprudence, the primary role of the law is not to be a therapeutic agent for the victim survivor. The law can be understood as an unreliable and volatile ear, because it listens not only to the victim-survivor but also to the accused. It also observes and partakes in processes that see the victim-survivor interrogated, doubted. As opposed to listening as healing trauma, the volatile ears of the law see the testifying voice subject to the doubting not only of the victim-survivor’s experience, but also of the victim-survivor themselves.
The victim-survivor’s exchange with the law not only involves how their voice relates to their fantasies and use of language, but also highlights how the law simultaneously performs its own interrelated fantasies (through a hidden or masked naturalized order). The law can be understood as imagining the victim-survivor to confirm its position of power and ability to successfully function as Other. The law’s demands on the victim-survivor have a significant impact on the realization of the victim-survivor’s anticipations, and can thus undermine their transformative potential. This constructs testimony as encompassing a potentially violent collision of the victim-survivor’s, and the law’s, fantasies.
The complex and high-stakes fantasy of the victim-survivor is negotiated in front of the Law-as-Other, who promises alignment but desires the continuation of its established order. The fantasies experienced by the victim-survivor and enacted in front of the Other through voice may act as a reminder to the law of the violence of the exchange, the exposure of its own needs, and the fantasy of having the victim-survivor reiterate its empowered position. The law embodies a high degree of power and social capital, and protects this social capital role in society. The law therefore ferociously protects the naturalized order by forcing the victim-survivor to adhere to its own language (the legal discourse), in an effort to cover its own lack and to reiterate its authority over its subjects. For example, Konradi describes how victim-survivors feel the need to use the right terminology (‘‘rape’’ or ‘‘forced sexual contact’’) in order to have their experience appropriately understood. 76 The victim-survivor’s voice adheres to language and the discourse of the law to be recognizable, but in doing so is also subjected to the metaphorical violence of language.
IX. Voice - As Vehicle of Violence
1 Legal Discourse
I saw that the rape victim attempts, through the prosecution, to become the word of the law.
77
Closing its dirty ears, law is deaf to the accusations of rape and silences woman, replacing her tongue with the pathos of wordless song, inarticulate sound, non-language, the pain of alterity.
78
The articulation of the language of the sovereign-Other promises a thwarting of the prohibitive, persecutory, or abandoning potentiality of the sovereign decision.
79
A victim-survivor’s fantasy of a transformation of understanding their sexual assault is impeded not only by their voice being directed towards the law, but also in adopting linguistic and legal discourse to express pain. In testimony, the victim-survivor is required by the law to coat their voice in discourse in order to be recognized and understood, but in doing so they occupy the position of other, jouissance, and the feminine: as inherently ambiguous. In reinstating these meanings which coat voice, testimony is a confronting reminder to the victim-survivor of the law’s inability, or unwillingness, to protect/redefine their subjectivity, their personal framework for understanding their sexual assault.
The law is founded on vocal traditions due to ideals of democracy and justice, but also due to connotations with immediacy and accessibility. The law possesses a high level of power in society, and this social capital is also naturalized to a high degree. The court room is a space in which the symbolic efficacy of the law is performed. The testifying voice can be understood as performative, not only of the processes of interpellation and cultural inscriptions of language, but also of the laws of social capital which are performed in the application of legal rituals and discourse.
In testimony, the legal discourse is the legal rhetoric that the victim-survivor must engage with in an attempt for his or her trauma to be understood, while the adoption of this discourse simultaneously undermines the authenticity of the victim-survivor’s pain. Laub and Auerhahn highlight the pressure on trauma victims to find a narrative through which to communicate their experience, however there exists a gap between the knowing and telling of trauma. 80 This gap is described as ‘‘radical break between trauma and culture.’’ 81 The legal discourse provides a cultural structure of meaning, an ordered narrative in which to locate a pain which legal discourse can never truly represent or understand.
Young suggests that in the testimony of rape, pathos is stripped from the voice of a victim-survivor as the law does not acknowledge the non-language sound of pain.
82
Young, with reference to Ellman, also states:
Legal discourse in rape trials reduces the word of rape victims to inarticulate sound. At best, their ‘‘language is purified as pain, conveying no semantic content but the feeling of some infinitely gentle, infinitely suffering thing.’’
83
The legal language is one which is encoded with the threat of violence and oppression. The law has the power to perform violence not only to the body, through incarceration or death, but to the victim-survivor’s subjectivity. Despite the law’s violent capabilities, the victim-survivor coats their expressions of pain in the rituals of the Other because they anticipate that the law will sympathetically redefine their trauma. The legal framework ironically reduces the victim-survivor’s voice to an inarticulate sound. As a consequence of abiding by the structures of the law, the victim-survivor anticipates an alignment as desirable; however, the adoption of the language of the law can paradoxically undermine the victim-survivor’s transformative fantasy.
The understanding that the victim-survivor imagines is entwined in recognition. This is not to recognize oneself in fantasy, but rather the need to be recognized in one’s own fantasy. 84 The testifying victim-survivor brings to the act of speech a symbolic system or codes, a variety of signifiers and understandings, through which to engage with the Other in its master discourse.
In order for the victim-survivor to be heard, understood and desired, testimony requires the victim-survivor’s voice to comply with the master discourse. The legal framework, in this context, can be understood as a master discourse. Rogers claims the master discourse assumed in the sovereign has ‘‘the capacity to judge the correct mode of being for the subject.’’ 85 Larcombe highlights how victim-survivors feel the need to comply with expected behaviors and conduct in order to be understood by the law. 86 While discrediting assumptions about the conduct and behaviors of ‘‘ideal victims’’ in relation to legal outcomes, Larcombe believes (with reference to Young’s research) credible witness and authentic victim is still determined by the legal rules, routines and conventions.
The master discourse is not one of empowerment, but rather of repression masquerading as truth.
87
The victim-survivor performs prescribed roles, procedures and discourses, imagining they will fill the position of object of desire in the Other’s void and, in so doing fill their own lack. In the victim-survivor’s pursuit of identification, voice simultaneously configures the denial of alignment of desirability with the law. Ragland states:
The master discourse denies that terms such as desire or surplus value in language, much less unconscious formation, actually condition the language of conscious perception. Thus, Lacan labels the effort made between the agent of speech and the other as impossible.
88
The adoption of legal discourse limits victim-survivors’ ability to express pain. Crisis is required in the victim-survivor’s voice because it is believed to signify authentic pain; 89 however, testimony requires that it must also be restrained in a legal frame of reference. The verdict is positioned to resolve any ‘‘crisis of truth,’’ but this relies on the person testifying being subjected to extreme objection and doubt.
The adoption of discourse is imagined to sustain the victim-survivor’s agency but can in fact re-enact the victim-survivor’s subordination. The taming of the victim-survivor’s voice results in what Dolar describes as an ‘‘undermining [of] any certainty and establishment of firm sense.’’ 90 As the senseless, destructive voice is required to be submissive and obedient to the law, the articulation of violence places the victim-survivor in a precarious position. Instead of affirmation, the loss experienced in the utterance of testimony may further alienate the victim-survivor and give authority to the loss experienced in being sexually assaulted.
X. Metaphysics
The voice is boundless, warrantless and no coincidence, on the side of woman.
91
Voice is historically and metaphysically paradoxical. An absence of voice in relation to sexual assault is correlated with the position of victim. To vocalize sexual assault is generally considered positive, as a medium of resistance or empowerment. 92 Voice is something of which someone can be deprived, with silence holding connotations with imprisonment or disability. It is therefore paradoxical that the voice of the victim-survivor is inflicted with philosophical and linguistic abstractions which undermine transformative fantasies.
The crime of sexual assault is gendered, as are the metaphysical significations of voice. 93 Young, in her article ‘‘The Waste Land of the Law, the Wordless Song of the Rape Victim,’’ investigates both the role of the perpetrator’s metonymic, aphasic-based fantasy of women as ‘‘desirable-yet-indifferent, superficial-yet-deeply-penetrable’’ 94 and also the victim-survivor’s transformative fantasy, from the pathos of victimization to logos of accusation, when testifying.
Metaphysical functions of voice simultaneously entice the victim-survivor with illusionary potential while constructing their voice as threatening, problematic, and suspicious – in other words, as feminine. While Dolar postures voice as object not only as excess but also as feminine, 95 Ragland highlights the epistemological context in which the negotiation of trauma and sexual identity in testimony occurs. 96
Underlying the articulation of sexual assault in testimony is the history of what Ragland describes as the traumatic event of acquiring a social identity as feminine. Ragland believes that the victim-survivor’s identification as female already implies an acceptance of castration and as the ‘‘object a-cause-of-desire.’’ The symbolic and imaginary laws, which inform sexual identity, privilege masculinity. Woman’s epistemological position is not on the side of phallic law. This researcher believes that Ragland’s account, while referring to symbolic and imaginary laws, also applies to the legal system, which is laden with performances of symbolic and social capital. The victim-survivor’s compliance with linguistic and legal structures sees the reiteration of naturalized cultural understandings: the status quo or symbolic order, which constructs the testifying subject as victim, sensual, inarticulate, and female: essentially the subordinate other.
XI. Language
The violence of language consists in its efforts to capture the ineffable and, hence, to destroy it, to seize hold of that which must remain elusive for language to operate as living thing.
97
The speech act, as the act of the speaking body, is always to some extent unknowing about what it performs, that it always says something that it does not intend.
98
Voice, as the instrument carrying language, performs an unintended violence to the victim-survivor as languages’ cultural baggage can be oppressive. Oppressive language is not a substitute for the experience of violence; instead, it enacts its own kind of violence. As Butler suggests above, language remains alive when it refuses to ‘‘encapsulate’’ or ‘‘capture’’ the events and lives it describes. When it seeks to affect that capture, language not only loses its vitality, but also acquires its own violent force. 99
The cultural underpinnings which make voice understandable can be in violent contention with the victim-survivor’s intent to represent pain. Butler states:
The morally imperative endeavor to represent the body in pain is confounded (but not rendered impossible) by the unrepresentability of the pain that it seeks to represent.
100
Butler suggests speech is fundamentally derivative, that the meaning of speech cannot be sourced in the utterance; the subject cannot control what is heard. 101 Butler identifies the illocutionary act: the gap between utterance and conventions, conditions or rituals as where meaning is produced, and that meaning precedes the speaker. The victim-survivor, in an attempt to be recognizable when speaking, reiterates power structures which sustain and pose a violence to both subjectivity and the body. 102 Butler believes that interpellation through linguistic modes of address constitutes the social body. She states, ‘‘the body becomes a sign of unknowingness precisely because its actions are never fully consciously directed or volitional.’’ 103 The illocutionary act sees articulation as inherently representative of an unknowing body, the victim-survivor’s ever-present vulnerability.
Western, patriarchal understandings of (for example) women, sexuality, victim, law and testimony are heard as the victim-survivor speaks. This can inflict representations that undermine the victim-survivor’s desire for empowerment, to re-narrate their experience of domination. In utilizing language, the victim-survivor is caught up in the discourse (presumed agency of speech) of what they utter, in this case as both a sexual object and as a victim, undermining the intention she may have to counteract such a position in the ears of the Other:
[In the uttering of] sexualised discourse she is sexualised by it and that very sexualisation undercuts her effort to represent sexualisation itself as a kind of injury. After all, in speaking it, she assumes it, furthers it, produces it; she speaking appears as an active appropriation of the sexualisation she seeks to counter.
104
Female utterances of sex are entwined in a metaphysical history that undermines the re-narration and identity they desire to achieve through testimony. The anticipated response by the Other is violently contradicted by the fact that their intent is coded as seduction. This process is identified by Butler as Performative Contradiction or Construal of Pornography:
An act of speech that in its very acting produces a meaning that undercuts the one it purports to make. To the extent that she speaks, she displays her agency, for speech is taken to be a sign of agency, and the notion that we might speak, utter words, without voluntary intention (much less unconsciously) is regularly foreclosed by this construal of pornography.
105
Intent and words are situated at a disjunction and signify a paradox of linguistic agency. The speech act therefore injures as it constitutes subjectivity. In the victim-survivor’s application of language to voice, an already-violated body becomes an unknowing body, and an unreliable body is made problematic in the state of testimony.
XII. Speech-act and Language
Speech both affirms the authority of the sovereign and promises to return the aligning subject to the status of the desirable subject.
106
The trauma uncannily returns in actual life, its reality eludes the subject who lives in its grips and unwittingly undergoes its ceaseless repetitions and re-enactments.
107
Victim-survivors utilize speech in order to have their trauma understood. Voice as the ‘‘act’’ of speech, as its sound, postulates as presence, truth and authority while the victim-survivor paradoxically struggles with the fleeting medium of language and the illusion of fixed meaning: its quilting points, or what Lacan refers to as the ‘‘point de capiton.’’ 108 The complex dynamic represented in the utterance sees the victim-survivor’s pain placed in an incredibly vulnerable position. The conflict embedded in this dynamic sees language as an inadequate way of representing and ‘‘fixing’’ not only the victim-survivor’s pain, but also that of existence.
The politics of testimony further exaggerate the victim-survivor’s paradoxically deceptive impression of voice as objective and personal, immediate and disowned. Testimony does not precipitate the victim-survivor’s ‘‘own speech’’ and its connotations of truth and empowerment. 109 Consequently the alleviation of pain becomes problematic. Although voice promises a reframing of trauma in the victim-survivor’s mind, the victim-survivor’s ‘‘act’’ of speech disrupts fantasies surrounding testimony, and therefore the therapeutic assumption associated with speaking about sexual assault.
XIII. Opportunity for Change
Sexual assault offenses are too often characterized by silence. This article has provided additional insight into why silence might be a comforting sanctuary to the violence voice represents to a victim-survivor’s subjectivity. The research intends to assist women to understand why they might feel the way they do when testifying to sexual assault; why the legal system, in performing a punitive function, does not currently represent an ideal therapeutic context in which to repair subjectivity. At an individual level the law does not currently work to assist the realigning of the victim-survivor’s damaged subjectivity, nor at a collective level does the law resist the misogynistic social imaginary. Despite this, opportunities to minimize victim-survivors’ entanglements in the vicious cycle of trauma repetition reside in supporting victim-survivor agency in their interactions with the law, and also in the law facilitating an epistemological evolution in regards to sexuality.
Interpellation incorporates an inevitable ‘‘failure’’; the law-as-Other’s inability to perfectly heal the victim-survivor, but the experience of testimony can also present an opportunity to reduce re-traumatization by assisting to validate the victim-survivor’s agency. Validation is determined by the law’s ability to provide a context of safety and trust, to accurately name the emotions felt by the victim-survivor and then being able to explain those emotions as a result of the context and circumstances. Voice, when received and responded to in this way by the law, encapsulates the ability to fulfill some degree of the therapeutic anticipations associated with testimony.
Feminist theorists such as Larcombe 110 and Konradi 111 believe opportunities for avoiding re-traumatization reside in the victim-survivor’s ability to demonstrate subversion and resistance. In suggesting the victim-survivor adopt resistance in the act of testimony, researchers should also be conscious of potential detrimental effects on the victim-survivor’s subjectivity. Naffine warns ‘‘the woman who threatened to reveal the dissonance between herself and the being she was required to be, experienced the strength (and the violence) of society’s and the law’s displeasure.’’ 112 Ideally, victim-survivors should not need to put themselves in a position of resistance when testifying to sexual assault. Legal and policy reform is needed to enable and support an ‘‘active’’ victim-survivor voice, to demonstrate agency through as much of a ‘‘personalized’’ representation of pain as possible. This type of reform should not just apply to the courtroom but at the different tiers of interceptions the victim-survivor has with the criminal justice system, for example in their interactions with the police and support services. Social change, in respects to how society constructs and reinforces understandings of sexuality, sexual assault and the role of the law, is also paramount to the victim-survivor’s sense of agency throughout the process of testimony.
Du Toit highlights the importance of epistemological evolution to support change in this area. She calls for a revolutionary imaginary; a disruption to dominant Western patriarchal symbolic order, and instituted social imaginary which resists the autonomy of the victim-survivor. 113 This significant ideological shift is required to not only infiltrate victim-survivors’ fantasies relating to testimony and minimize the re-traumatization of victim-survivors in testimony but also to reduce the number of sexual assaults and the associated experience of trauma.
XIV. Conclusion
This critical engagement of psychoanalytic theory with trauma, testimony and feminist literature enhances our framework for understanding the re-traumatization of victim-survivors in testimony. The victim-survivor’s vocalization of trauma into the ears of the law is a complex and volatile experience. A victim-survivor’s testifying voice is simultaneously the expression of pain and desire. It constitutes an anticipation of healing, and often unbeknown to the victim, violently disrupting fantasies of alignment with the law. The testifying victim-survivor imagines their voice to be transformative, able to re-narrate experience and (re)establish both presence and an alignment of desirability with the Other. Voice disrupts this fantasy, and in doing so performs a violence to subjectivity. The process of interpellation encompasses an unavoidable ‘‘failure’’ which is situated in the victim-survivor’s ultimate and necessary submission. The victim-survivor must negotiate the cut inflicted by voice – the rupture to self-presence – in front of the additionally castrating law. Despite this, understanding how voice and fantasy relate in the context of victim-survivors’ testimony provides for an avenue of resistance to dominant epistemology and an ability to move forward in the development of a new social consciousness surrounding female sexuality.
Footnotes
1.
Victim-survivor in Hadar Dancig-Rosemberg, ‘‘Sexual Assault Victims: Empowerment or re-victimization? The need for a Therapeutic Jurisprudence Model,’’ Trends and Issues in Victimology, 150 (2008), 151.
2.
N. Bluett-Boyd and B. Fileborn, Victim/survivor-focused justice responses and reforms to criminal court practice: Implementation, current practice and future directions (Research Report No. 27) (Melbourne: Australian Institute of Family Studies, 2014); A. Taslitz, Rape and the Culture of the Courtroom (New York: University Press, 1999).
3.
Dancig-Rosemberg, 2008.
4.
M. Briody, ‘‘The effects of DNA evidence on sexual offence cases in court,’’ Current Issues in Criminal Justice, 14(2) (2002–03), 159–81.
5.
D. Lievore, ‘‘Prosecutorial decisions in adult sexual assault cases,’’ Trends and Issues in Crime and Criminal Justice, 291, January (Canberra: Australian Institute of Criminology, 2005); M. Heenan and S. Murray, Study of reported rapes in Victoria 2000–2003: Summary research report (Melbourne: Office of Women’s Policy, Department for Victorian Communities, 2006).
6.
Bluett-Boyd and Fileborn, 2014.
7.
N. Henry, ‘‘Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence,’’ The International Journal of Transitional Justice, 3 (2009), 114–34.
8.
In D. Laub and S. Felman (eds), Testimony: Crises of Witnessing in Literature, Psychoanalysis and History (New York: Routledge, 1992).
9.
Op. cit.
10.
A. Young, ‘‘The Waste Land of Law, the Wordless Song of the Rape Victim,’’ Melbourne University Law Review, 22 (1998), 444–65.
11.
Young, 1998.
12.
Dancig-Rosemberg, 2008.
13.
Taslitz, 1999.
14.
L. Du Toit, ‘‘Introduction: Meaning/s of Rape in War and Peace,’’ Philosophical Papers, 38(3) (2009), 285–305; ‘‘Sexual specificity, rape law reform and the feminist quest for justice,’’ South African Journal Of Philosophy, 31(3) (2012), 465–83; ‘‘The contradictions of consent in rape law,’’ South African Review Of Sociology, 39(1) (2008), 140–55.
15.
N. Naffine, ‘‘Possession: Erotic love in the law of rape,’’ The Modern Law Review, 57(1) (1994), 10–37.
16.
W. Larcombe. ‘‘The ‘Ideal’ Victim v Successful Rape Complainants: Not What You Might Expect,’’ Feminist Legal Studies, 10(2) (2002), 131–48.
17.
K. Bumiller, ‘‘Rape as a Legal Symbol: An Essay on Sexual Violence and Racism,’’ University of Miami Law Review, 42 (1987–1988), 75–91.
18.
G. Matoesian, ‘‘Language, Law, and Society: Policy Implications of the Kennedy Smith Rape Trial,’’ Law & Society Review, 29(4) (1995), 669–701.
19.
Bumiller, 1987–1988.
20.
E. Ragland, ‘‘Lacan and the subject of the law: Sexuation and discourse in the mapping of subject positions that give the ur-form of law,’’ Washington and Lee Law Review, Summer, 54(3) (1997), 1092.
21.
Dancig-Rosemberg, 2008, 156.
22.
D. Snape and L. Spencer, ‘‘The Foundations of Qualitative Research’’ in J. Ritchie and J. Lewis (eds), Qualitative Research Practice: A Guide for Social Science Students and Researchers (London: Sage, 2003), p. 13.
23.
J. Lacan, Ecrits, B Fink, trans (New York: W.W. Norton & Company, 2006); ‘‘The Insistence of the Letter in the Unconscious,’’ Yale French Studies, Jacques Ehrmann (ed), Jan Miel (trans), 36(37) (1966), 112–47.
24.
S. Žižek, ‘‘Che Vuoi?’’ The Sublime Object of Ideology (New York: Verso, 1989), pp. 86–129.
25.
M. Dolar, ‘‘The Object Voice,’’ Gaze and Voice as Love Objects, Žižek, S. and Renata, S. (eds) (Durham, NC and London: Duke University Press, 1996), pp. 7–31; A Voice and Nothing More (Cambridge, MA: MIT Press, 2006).
26.
Du Toit, 2007, 2009, 2012.
27.
Young, 1998.
28.
Bumiller, 1987–1988.
29.
Naffine, 1994.
30.
J. Butler. Excitable Speech: A Politics of the Performative (New York: Routledge, 1997a); Chapter 1 in The Psychic Life of Power: Theories in Subjection (Stanford, CA: Stanford University Press, 1997b), pp. 1–30.
31.
Du Toit, 2012470.
32.
Henry, 2009, 117.
33.
Henry, 2009; Laub in Laub and Felman (eds), 1992.
34.
Laub in Laub and Felman (eds), 1992; Ragland, 1997; Young, 1998.
35.
Du Toit, 2012, 471.
36.
Op. cit., 467.
37.
Op. cit.
38.
Op. cit.
39.
In Dancig-Rosemberg, 2008, 155.
40.
Laub in Laub and Felman (eds), 1992.
41.
Lacan, 2006, p. 248.
42.
J. Rogers, ‘‘Who’s Your Daddy,’’ Law Text Culture, Andrew T. Kenyon and Peter D. Rush (eds), 11 (2007), 171.
43.
K.M. Franke,’ ‘Gendered Subjects of Transitional Justice,’’ Columbia Journal of Gender and Law, 15(3) (2006), 819.
44.
Lacan, 2006.
45.
Op. cit.
46.
Dolar, 1996, 2006; Žižek, 1989; Butler, 1997a.
47.
P. Bourdieu, Language and Symbolic Power, trans. Gino Raymond and Matthew Adamson (Cambridge, MA: Harvard University Press, 1991).
48.
Rogers, 2007, 152.
49.
Rogers, 2007.
50.
Žižek in Dolar, 1996, p. 70.
51.
Dolar, 2006, p. 105.
52.
Lacan, 2006.
53.
Op. cit.
54.
Dolar, 1996, p. 80.
55.
Dolar, 1996, p. 80.
56.
Dolar, 2006.
57.
J. Clemens and R. Grigg, ‘‘A Note on Psychoanalysis and the Crime of Torture,’’ Australian Feminist Law Journal, 24 (2006), 173.
58.
Dolar, 2006, p. 137.
59.
Lacan, 2006.
60.
Dolar, 2006, p. 133.
61.
Ragland, 1997, 1109.
62.
Op. cit., 1109.
63.
Clemens and Grigg, 2006.
64.
Op. cit., 173.
65.
Dolar, 2006, p. 136.
66.
In Dancig-Rosemberg, 2008, p. 151.
67.
Rogers, 2007, 172.
68.
Dolar, 2006, p. 122.
69.
Žižek, 1989, p. 123.
70.
Op. cit., 1989, p. 118.
71.
Rogers, 2007, 177.
72.
Young, 1998, 455.
73.
Žižek,1989.
74.
Ragland, 1997, 1115.
75.
Lacan, 2006.
76.
A. Konradi, ‘‘Preparing to Testify: Rape Survivors Negotiating the Criminal Justice Process,’’ Gender and Society, 10(4) (1996), 421.
77.
Young, 1998, 465.
78.
Op. cit., 1998, 464.
79.
Rogers, 2007, 176.
80.
L. Dori and N. Auerhahn, ‘‘Knowing and not knowing massive psychic trauma: Forms of traumatic memory,’’ International Journal of Psychoanalysis, 74 (1993), 287.
81.
Op. cit.,1993, 228.
82.
Young, 1998.
83.
Op. cit.,1998, 465
84.
Lacan, 1966, 143.
85.
Rogers, 2007, 169.
86.
Rogers, 2002.
87.
Ragland, 1997, 1114.
88.
Ragland, 1997, 1111.
89.
Laub, 1992, p. 54.
90.
Dolar, 1996, p. 23.
91.
Dolar, 1996, p. 23.
92.
Henry, 2009.
93.
Du Toit, 2009.
94.
Young, 1998, 444.
95.
Dolar, 1996.
96.
Ragland, 1997, 1103.
97.
Butler, 1997a, p. 9.
98.
Op. cit., p. 10.
99.
Morrison in Butler, 1997a, p. 9.
100.
Butler, 1997a, p. 6.
101.
Op. cit.
102.
Op. cit., p. 15.
103.
Op. cit., p. 10.
104.
Op. cit., p. 83.
105.
Op. cit., p. 84.
106.
Rogers, 2007, 177.
107.
Laub in D. Laub and S. Felman (eds), 1992, p. 68.
108.
2006
109.
Op. cit., p. 5.
110.
Larcombe, 2002.
111.
Konradi, 1996.
112.
Naffine, 1994, 18.
113.
Du Toit, 2009, 2012.