Unreasonable doubt

Content note: This post deals with the reporting of sexual violence, and contains details of a very distressing case.

In the first week of 2019, news media around the world reported that a woman in a healthcare facility outside Phoenix, Arizona, had unexpectedly given birth to a baby boy. This was not a happy event. The woman had been in a vegetative state since suffering brain damage many years earlier (some reports said ‘over a decade’, others 14 years; later it was suggested she had spent as long as 27 years—by implication, most of her life—in full-time medical care, relying on others to take care of her most basic needs. Yet her pregnancy went unnoticed until, alerted by her moaning, a staff member realized she was in the advanced stages of labour.

Clearly, there are all kinds of questions that need to be asked about this horrific case. And while it isn’t the most important or the most urgent, one of those questions concerns the way it was reported by the media.

Criticism of the media’s coverage of sexual violence often focuses on the twin problems of victim-blaming and ‘himpathy’, the tendency to make excuses for men or to present them as victims themselves. In this case those problems did not arise. But there was another problem with the language used in reports, as you may notice if you look at these examples:

  1. The police in Phoenix have opened an investigation into allegations that a woman in a vegetative state at a private nursing facility was sexually assaulted and gave birth to a child last month (New York Times)
  2. An Arizona health care facility is investigating what it calls a “deeply disturbing incident” that a local television station has said involved the alleged sexual assault of a patient in a vegetative state (People)
  3. Local news outlet KPHO-TV reports that the Phoenix Police Department began investigating the incident as a possible rape case after the woman gave birth on Dec. 29. (Huffington Post)
  4. Police in Phoenix, Arizona, are investigating a possible sexual assault after a woman in a vegetative state gave birth at a healthcare facility on Saturday (Insider.com)
  5. Woman in vegetative state gives birth after apparent assault (ABC News)
  6. She gave birth on December 29 after apparently being raped at the facility some months earlier. (Mail Online)

A fancy name for what concerns me about these examples is ‘epistemic modality’—the expression of meanings relating to certainty or uncertainty, belief or disbelief. Suppose I’ve lost my keys and you ask me when I last had them. I can convey the same basic information—that I had them yesterday—in a range of different ways that communicate different degrees of confidence in the truth of that proposition. I might say, for instance (though there are many other possibilities):

It must/ might/ may/ could have been yesterday
I know/ think/ guess I had them yesterday
It was definitely/ probably/ possibly yesterday
I’m absolutely/ quite/ pretty/ almost sure it was yesterday

I’ve deliberately used a banal example to make the point that we all do this all the time. But in some contexts it’s particularly important to pay attention to this aspect of language. News reporting is one example. In a genre where, proverbially, ‘facts are sacred’, reporters must choose their words to make clear whether a proposition is being presented as a fact, a theory, a belief, a rumour, a supposition, a speculation or an opinion.

In news reports on the Arizona case, the proposition that the woman who gave birth had been sexually assaulted or raped (Arizona’s state law uses the term ‘sexual assault’ for both) was persistently worded in a way that implied a lack of certainty. In the first two examples reproduced above, the assault is said to be ‘alleged’ or an ‘allegation’, i.e. a claim someone has made that could be either true or false. The next two refer to a ‘possible’ sexual assault or rape. In the last two we get ‘apparent(ly)’, which suggests a higher degree of confidence, but stops short of full commitment (‘we don’t know for sure, but this is how it looks’). In everyday talk ‘apparently’ is often used to indicate that a proposition is hearsay, second-hand information whose truth the speaker can’t vouch for independently (e.g., ‘she’s broken up with her girlfriend, apparently’).

I didn’t make a full survey of the coverage, but this was the dominant pattern in the sample of reports I looked at. Among those which did not fit the pattern, most avoided taking any position at all (for instance, by reporting only that the woman had given birth and the police had launched an investigation). I found only one report, in the Washington Post, that expressed a high degree of confidence a crime had been committed:

The birth — and the sexual assault of a vulnerable individual that must have preceded it — has cast a harsh glare on conditions at a nonprofit organization that bills itself as a leading provider of health care for Phoenix’s medically fragile.

By using the modal verb ‘must’, this report presents the proposition that the woman was assaulted as something we are logically obliged to treat as certain. Even if there were no witnesses (or more exactly, none capable of making a statement), there is no other explanation for what some people did witness, the birth of a child to a woman who had been in a vegetative state for (much) longer than the duration of her pregnancy.

To me, and I imagine most readers of this blog, the conclusion drawn by the Post is self-evidently the correct one, while the caution displayed in other sources is excessive. If ‘sexual assault’ is understood to mean sex without consent (which is how Arizona’s legal code defines it), then there is no doubt that this woman was assaulted. Her pregnancy is evidence of sex (or in a hypothetical alternative scenario involving artificial insemination, of a bodily intrusion that would also count as assault by Arizona’s definition), and because of her vegetative state we can be certain that she did not consent, nor do anything that could have been construed as consent. In any case, under Arizona law a person affected by ‘a mental disorder, defect, drugs, alcohol or any type of impairment’ lacks the capacity to consent to sex.

In this case there really are no ifs, buts or maybes: what was done to this woman was a criminal assault. Why couldn’t the media just say so, without all the hedging and equivocating? The impression their language gave was that they didn’t understand either the legal definition of sexual assault or the concept of consent. The hedging invited readers to look for reasons why this might not have been rape, potentially reinforcing well-worn myths like ‘it’s not rape if he doesn’t use force’ and ‘it’s not rape if she doesn’t resist’.  Or in this situation, ‘it’s not rape if she’s in a permanent vegetative state’. (Yes, it’s a horrible thought–but there are men who think it’s not rape if a woman is asleep.)

On Twitter, I saw a number of comments suggesting that cautious language had been used for legal reasons (‘they can’t say it’s rape when it’s still being investigated’). In some cases, it’s true, the legal presumption of innocence obliges the media to remain non-committal on the question of whether a rape occurred. If the defendant in a case is denying he raped the complainant and claiming it was consensual sex, then the complainant’s account of it as rape cannot be presented as factually true, or even as more credible than the alternative, because that would be prejudicial to the defendant, presupposing his guilt before it has been proved ‘beyond a reasonable doubt’ (the standard of proof required for a criminal conviction). Unless and until there is a conviction, the complainant’s statement can be presented only as an ‘allegation’. And most rape cases where the disputed issue is consent do not result in a conviction. The arguments made by defence lawyers and the conclusions drawn by jurors reflect the attitudes of the wider culture, which is not only predisposed to doubt women’s accounts, but willing to accept almost any argument for doubting them as ‘reasonable’.

But in the Arizona case it should have been obvious that these considerations did not apply. No police officer or lawyer will ever question this woman; no jury will ever be asked to determine whether she consented, or whether she lied. If there’s a trial, it will be all about the DNA. How, in these circumstances, could anyone have thought it was necessary, or indeed accurate, to report that the police were investigating an ‘alleged’ assault? Who is supposed to have made the ‘allegation’? Clearly not a woman who is unable to communicate. And if it’s the staff at the facility, what they did was not ‘allege’ something but report something some of them had directly witnessed. As for ‘possible’ assault, when you describe something as a ‘possible X’, you’re saying it might turn out that either nothing happened or that what happened was something other than X. In this case, what would that have been? Abduction by aliens? A miracle?

What were the people who wrote this stuff, or passed it for publication, thinking? One answer to that question might be quite simply that they weren’t thinking: they just reached for the conventional formulas on autopilot, without stopping to ask themselves whether in this situation the result would be inaccurate and misleading. Like the political writers George Orwell criticized in his essay ‘Politics and the English Language’, they were stringing together stock phrases in the manner of ‘a prefabricated henhouse’.

Feminist efforts to change the language of rape reporting have often assumed that this thoughtless recycling of outdated formulas is the central problem, and that the solution is a combination of awareness-raising—getting people to notice what’s implied by the language they habitually use—and offering practical alternatives. That’s the approach taken in, for instance, this checklist for journalists produced by Canada’s Use the Right Words project , which touches on the question of epistemic modality: it notes for instance that ‘allegedly’ may be necessary in certain contexts but warns against over-using it, and recommends that complainants’ statements should be framed using neutral verbs (e.g., ‘she said’) rather than verbs that imply doubt or blame (like ‘she claimed’ or ‘she admitted’).

But while this kind of advice can be helpful to those who are disposed to take it, the problem it can’t address is that which words are ‘the right words’ depends on what story you’re using them to tell. What if the media use the words they do strategically, because they are in fact the ‘right words’ for the narrative being constructed? Is the problem the words themselves, or is it the narrative?

In a 1992 article entitled ‘The linguistics of blame’, Kate Clark analysed the vocabulary and grammar used in the Sun newspaper’s reporting of violence against women,  and found that different patterns were associated with two contrasting narratives: one in which an innocent victim—a child, a chaste young woman or a good wife and loving ‘mum’—was attacked by a man described as a ‘monster’, a ‘beast’ or a ‘fiend’, and another in which a bad woman—a negligent or frigid wife, a provocative ‘Lolita’ or promiscuous ‘blonde divorcee’—was held responsible for provoking whatever had happened to her. In addition to being a standard-bearer for sexism, the Sun was a staunch supporter of right-wing ‘law and order’ policies: cases of violence against ‘innocent’ women could be used to advance that part of its political agenda. More recently we’ve seen some sections of the press eschewing the usual scepticism and victim-blaming where that enables them to construct a racist narrative in which ‘our women’ [i.e., white women and girls] are being exploited and abused by non-white, foreign or Muslim men.

In the Arizona case it seemed the media had no strong or consistent narrative. We might have expected this to be, in the Sun’s terms, an ‘innocent victim abused by a monster’ story, worded to express outrage rather than caution. But the outrage was noticeably muted (‘a deeply disturbing incident’ was as strong as it got). Though the victim’s ‘innocence’ was not in question (many reports contained obfuscation and needless scepticism, but none engaged in actual victim-blaming), there did not seem to be much empathy for her either. As this comment piece notes, abusers of women with disabilities (who as a group suffer disproportionately high levels of sexual violence) can exploit not only their victims’ inherent vulnerability, but also their cultural invisibility. The mistreatment of disabled people in institutions is hidden from public view, and the media that might bring attention to it are, as one disability activist quoted in the piece puts it, ‘still largely uncomfortable seeing disabled people as, well, people’.

Even if they are deemed ‘innocent’, some victims may still be treated as less deserving of our sympathy and concern than others. Race, class, age and (dis)ability all influence the ranking. (Another pertinent example recently in the news is the way the media covered R. Kelly’s marriage to 15-year old Aaliyah in the 1990s, described in this piece as a ‘collective shrug’ which resulted from a combination of celebrity-worship, himpathy and misogynoir.)

I am not suggesting feminists shouldn’t criticize the media’s use of specific words, stock formulas or linguistic strategies (something I’ve done myself in this post), but I do think we need to recognize that the problem here goes far beyond language. The language of rape reporting is more a clue to the problem than a cause of it: it reflects the narratives the media construct around sexual violence, the culture of disbelief those narratives spring from, and the male dominance which that disbelief protects. Those things, ultimately, are what we have to change.

Update: since this post was written a man who worked at the Arizona facility as a practical nurse has been arrested on charges of sexual assault and vulnerable adult abuse. 

 

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Not a safe word

Last weekend a writer named Will Saletan stirred up a hornet’s nest when he tweeted some advice for parents:

Teach your daughters to say No firmly, and mean it. Men sense women’s willingness to yield. Make clear you mean business.

Like other feminists, I saw this as a classic case of a man weighing in with very little understanding of the issue at hand, and no appreciation of the reasons why he was bound to provoke a storm of criticism. But the exchanges the tweet prompted, on Twitter and elsewhere, reminded me of another, perhaps less popular opinion I hold: that discussions of sexual consent and refusal very often present the issue of ‘saying no’ as less complicated than it really is.

In 2015, just before I started this blog, I wrote something on this subject which I never found a home for. In fact, I’d more or less forgotten it, until Saletan’s tweet made me remember why I’d felt the need to write it.  So I pulled it out, reworked it slightly, and—for whatever it’s worth—here it is.

__________________________________________

In BDSM subcultures, participants in sexual encounters may agree in advance on a ‘safe word’—a word which can be uttered at any time to communicate the message ‘stop this now’. In theory, any word will do: all that matters is that the parties know it and agree to respect its meaning. But there are some words that can’t be used, and one of those words is ‘no’.

The fantasies played out in BDSM involve a dominant partner imposing their will on a submissive one. But the pleasure of imposing your will can only be experienced fully if the other appears to be unwilling. A show of resistance is part of the fantasy, enhancing the erotic charge for both partners. ‘No’, the prototypical verbal token of refusal, is used (along with other prototype expressions like ‘don’t’ and ‘stop’) to enact this simulated resistance. Consequently it cannot be a safe word, the word you utter when your refusal is real.

This principle doesn’t just apply in dungeons. When I was at primary school in the late 1960s, the girls had a playground chant that went: ‘Oh, Sir Jasper, do not touch me’. The game was to repeat this chant, leaving out the last word each time, like this:

Oh, Sir Jasper, do not touch me!

Oh, Sir Jasper, do not touch!

Oh, Sir Jasper, do not!

Oh, Sir Jasper, do!

Oh, Sir Jasper!

Oh, Sir!

Oh!

I now know that these are the words of a rugby club song which is thought to date from the early 1950s. In its original form it includes a chorus after each line: ‘she lay between the lily-white sheets with nothing on at all’. The scenario evoked in the song has echoes of the popular Victorian melodramas in which an innocent girl is ‘seduced’ (i.e., raped) by an aristocratic villain. In the song, though, she isn’t innocent. Her resistance is simulated, there to be overcome.

At the age of 9 or 10 ‘Oh, Sir Jasper’ was just a game: we didn’t know where the song came from or understand what it was really about. (Today a 10 year-old might have more idea, but we were still pretty ignorant.) With hindsight, though, chanting these words was part of our informal education in the patriarchal rules of heterosexual conduct. We were absorbing the idea that a good girl refuses a man’s sexual overtures (and certainly does not make overtures to him). But we were also learning that her refusal is not sincere: really, she wants what he wants, she just can’t admit it straight away. The man’s job is to wear her resistance down, to persist until ‘Oh, Sir Jasper, do not!’ turns into ‘Oh, Sir Jasper, do!’

A decade after leaving primary school I would find myself in another group of women chanting a different set of words: ‘However we dress/ Wherever we go/ Yes means yes/ No means no’. ‘Yes means yes, no means no’—these are statements of the obvious, self-evident truths, tautologies. But when you put them together with the cultural script I’d first encountered as a young girl, they do not look quite so obvious, nor quite so simple.

The script says that whatever they want, women should offer some token resistance. If they say ‘yes’ too easily they risk being branded as sluts. (In an age when Teen Vogue promotes the joys of anal sex you might be thinking this rule no longer applies, but there is plenty of evidence that the charge of being a ‘slut’ (or ‘slag’ or ‘skank’) has not lost its power: it is a basic and ubiquitous component of the sexual bullying endured by thousands of teenage girls). The script also presupposes that it will be the man who asks the question, while the woman’s role is just to answer ‘yes’ or ‘no’. If she does the asking she is not just a slut, but potentially a ball-breaking nymphomaniac. For as long as these conventions persist, the unpalatable truth is that some women, sometimes, will offer resistance which is not meant as an absolute refusal. And some men will get pleasure from overcoming that resistance.

I want it to be crystal clear what I’m not saying here. I am not saying that women are to blame for being raped because they don’t always say ‘no’ and mean it as an unequivocal refusal. Nor am I suggesting that men can be excused for ‘misunderstanding women’s signals’ and believing women consent when they do not. Those defences are both used in rape cases, and I reject them absolutely (I’ll say more about why later on). What I’m saying is that the context in which heterosexual encounters take place is (still) one in which men are defined as sexual subjects, while women are defined as sexual objects. That understanding of their respective roles affects what each participant is allowed to say, and how their words will be understood. In this sexual and linguistic economy there can be no guarantee that a woman’s ‘no’ is always and by definition an unequivocal refusal, nor that her ‘yes’ is always and by definition an active, uncoerced expression of desire.

Of course it is entirely possible for a woman to intend to refuse sex or to consent to sex, and to express that in terms that she herself considers unequivocal. But the thing about language is, you’re never a free agent—at least, not when you’re talking to someone other than yourself. Humans are not mind-readers: we do not have direct access to other people’s intentions, but only to the words they utter. And to understand what other people mean we have to do more than just decode their words. We also have to make inferences about how the words were intended. What is meant may be quite different from the literal meaning of what is said (as in irony or sarcasm); the key to what is meant may lie in what is conspicuously not said (as in hinting or sulking).

Figuring out the meaning behind the words is the hearer’s job, and to do it s/he uses both contextual information and common-sense assumptions about the world. That last part is where the problem arises. Will Saletan’s claim that ‘Men sense women’s willingness to yield’ implies that men just respond to cues they detect in women’s behaviour, but in reality, the men he’s talking about assume women’s willingness to yield. They’re working from the script in which ‘women say “no” when they don’t mean it’ is a common-sense assumption, a truism. This is not a problem with the way individual women express themselves. It is a problem with the world in which they do it.

Men who have been accused of rape will often point out that they can’t read women’s minds. ‘She didn’t say “no”, so what was I supposed to think?’ And in many cases it will be true that she didn’t utter the actual word ‘no’. But it doesn’t follow that she wasn’t refusing. English-speakers very rarely communicate refusals by saying ‘no’, firmly or otherwise.

Refusing is one possible move in response to a proposal or an invitation; the other is accepting. These two options form what conversation analysts call a ‘preference system’. One response, acceptance, is ‘preferred’, and you can express it very simply and briefly. If a colleague asks me to go for a drink after work and I want to accept the invitation, I can say something like ‘great, see you in the pub’. It isn’t a problem that this response is brief and bald, because I can assume it’s what my interlocutor wants to hear (a person who issues an invitation is usually hoping it will be accepted). But if I don’t want to go to the pub I will need to take a bit more care, because (as it says on the old notice about not asking for credit), ‘a refusal may offend’.

Detailed analysis of real-life refusals shows there’s a formula we use to mitigate the offence. It goes: hesitate + hedge + express regret + give a culturally acceptable reason. As in ‘um, well, I’d love to, but I promised I’d be home early tonight’. Or ‘[pause] I’m sorry, but I’ve got a report to finish’.

Imagine responding to someone who suggests going for a drink after work with a simple unvarnished ‘no’. Or ‘no, I can’t’, or ‘no, I don’t want to’. The person you said this to would think you’d been raised by wolves. It’s curt, it’s rude, and it will be heard as arrogant or aggressive. Why would we imagine that saying ‘no’, firmly, is a reasonable thing to tell a woman to do in a situation where she has reason to fear the consequences of giving offence? Why would we blame her for trying to refuse diplomatically, when we’d do the same ourselves in far less risky situations?  And why would we believe that ‘men don’t understand anything less direct than “no”’? The formula for (non-sexual) refusals is used and understood by speakers of both sexes. It’s absolutely normal. Saying ‘no’ is not.

Since it’s not considered ethical to record people’s sexual encounters, linguistic researchers have no direct evidence about sexual refusals in real-life situations. But one study, carried out by Celia Kitzinger and Hannah Frith, gathered some indirect evidence by asking women in focus groups to talk about their experiences of refusing sex. The strategies these women said they used followed the formula for other kinds of refusals: they involved hedging, apologizing and giving acceptable reasons. In this context, an ‘acceptable’ reason was one that did not imply any lack of desire for the man who was asking. It was better to emphasize circumstantial obstacles—headaches, periods, early starts—or your own emotional problems (‘well, I’m flattered, but I’m just not ready for another relationship’). Most women agreed that ‘just say no’ was bad advice, especially if the man was putting pressure on you, because of the risk that it would make him angry, and prompt a physically aggressive response.

So, the issue isn’t whether ‘no means no’, and whether men understand that. And it’s certainly not whether women say it ‘firmly’ enough to show they ‘mean business’. The issue is whether men are capable of interpreting—i.e. inferring the intentions behind—the verbal strategies which are normally used to indicate a lack of enthusiasm for something another person proposes. And the answer to that question must be yes, since in all other contexts men use those strategies themselves.

Since Kitzinger and Frith’s study, other research has provided evidence that men are able to interpret refusals which don’t contain ‘no’. This points to another unpalatable truth: in most cases where men have sex with women who don’t want to have sex with them, the men must know that’s what they are doing. Some may persuade themselves otherwise (using the time-honoured script in which resistance is token, there to be overcome). Others just don’t care. None of them should be able to get away with it.

In the last couple of years a new consensus has emerged about the importance of educating young people about consent. Many universities are doing this, and in future it will be a required element of the Relationships and Sex Education curriculum in schools. Like most feminists, I’m in favour of this, if only because so many people still have no understanding of their basic rights and responsibilities under the law. But on its own, I think it will only make things slightly better (which I acknowledge isn’t nothing, given how bad they are at the moment). It may help to make refusals more intelligible as refusals—that is, challenge the part of the script which assumes ‘women’s willingness to yield’—but it won’t solve the problem of women saying yes, under social and emotional pressure, to sex they don’t really want, or being prevented from pursuing their own desires by the fear of being branded sluts.

Ultimately what we need to do is rewrite the whole script, not just the ‘saying no’ part. In an ideal world, sex wouldn’t just be consented to (like medical treatment, or the terms and conditions offered by internet providers). It would be an actively and mutually desired exchange between free and equal human beings. We are still a long way from that world; but while of course feminists must go on fighting for what women need in the present, we must also go on trying to imagine a more radically different, and better, future.

 

 

‘Language changes, deal with it’

Last October the writer Rhiannon Lucy Cosslett told her followers on Twitter how her boyfriend had reacted to her new Georgia O’Keeffe print—by complaining that ‘you’ve put a big vagina on our wall’. Then she added:

Ten points for the first pedant who tweets me “it’s a vulva”. Language changes, deal with it.

As you’ll know if you read my post lamenting the state of most people’s female genital vocabulary, when it comes to ‘vagina’ and ‘vulva’ my feminist heart is with the pedants. But in my linguist’s head I know that Cosslett is right. The meaning of a word is its use in the language. If enough people understand a word to mean X, then X is what it means.

Even pedants, if pressed, will generally acknowledge that language changes, and that the meanings of words are no exception. ‘Silly’ no longer means ‘holy’. ‘Vagina’ no longer means ‘sheath’. But there’s still a strong folk-belief that change (along with its precursor, variation) is undesirable, dysfunctional, a threat to communication. If words mean different things to different people, and if their meanings are constantly shifting, how can we understand each other, or have rational, meaningful dialogue?

In modern liberal democracies there’s a particular fear that the tendency for meaning to change as words are used will be exploited deliberately by the powerful and the unscrupulous. If we don’t stand firm, we’ll be at the mercy of dictators who use language not to communicate, but to obfuscate and manipulate. Since Trump and his gang took office, there’s been a deluge of commentary on this theme. You can hardly open a newspaper or scroll through Facebook without encountering some new complaint about the ‘abuse’ or ‘perversion’ of language.

The case that’s attracted most attention so far is Kellyanne Conway’s use of the phrase ‘alternative facts’, referring to the false claims made by the White House press secretary about how many people attended Trump’s inauguration. Conway’s lame attempt to defend the indefensible prompted scores of commentators to accuse her of trying to redefine the meaning of the word ‘fact’. In the words of one Huffington Post contributor:

Alternative facts are not facts. They are untruths. They are LIES. Here, look, Merriam-Webster’s Dictionary kindly sent you a definition of what a fact is: “A fact is a piece of information presented as having objective reality”.

Merriam-Webster’s intervention (tweeting out the definition of ‘fact’) was widely applauded: the Guardian even hailed the birth of a new superhero, ‘Dictionary Guy’, fighting lies and demagoguery by simply restating the ‘basic idea that words have non-negotiable meanings’. Other critics invoked Lewis Carroll’s Humpty Dumpty, with his absurd delusions of semantic grandeur (‘when I use a word, it means whatever I choose it to mean’), or compared Conway’s rhetoric to George Orwell’s fictional Newspeak, a language designed not merely to restrict the public utterance of inconvenient truths, but to stifle dissent at source by making it literally unthinkable.

The criticism aimed at Conway was richly deserved (ditto the ridicule, in the form of jokes like ‘I’m not drunk, officer, I’m alternative sober’). But there’s a problem with the ‘basic idea that words have non-negotiable meanings’. They don’t. If they did, their meanings would never change, and there would never be any argument about them.

It’s true, of course, that some words provoke more argument than others. I’ve never witnessed a heated debate about the meaning of ‘cat’ or ‘trombone’. By contrast, I imagine that most people reading this have at some time been involved in an argument about the meaning of ‘feminism’, or ‘sexism’, or any number of other ‘hot-button’ terms, from ‘abortion’ to ‘Zionism’, which people with opposing political views define in different and conflicting ways. As the linguist Philip Seargeant recently observed, ‘disputing the meanings of words is always part of political debate’. And it isn’t just the ‘hot-button’ terms:  one current court case, about the the right of parents to take their children on holiday during the school term, has involved hours of legal argument about what ‘regular’ means. Wherever there are conflicts of interest, there will also be conflicts about the meanings of key terms.

Insisting that ‘words have non-negotiable meanings’–and that your meaning is the true meaning whereas your opponent’s is a ‘perversion of language’–is a time-honoured rhetorical move in arguments about disputed terms. But it’s a move that tends to favour  conservatives, because it’s most effective when deployed in defence of an older usage against a newer one. And typically what’s behind that defence is not just resistance to linguistic change, but opposition to whatever social change has produced a new way of using words.

When I first read the complaint about ‘alternative facts’ which I quoted earlier from the Huffington Post, I had a feeling of déjà vu, as if I’d seen it somewhere before. Eventually I realised what it reminded me of:

A same-sex marriage is not a marriage. It’s a parody of a marriage. It’s GROTESQUE. Here, the dictionary kindly sent you a definition of what marriage is. ‘Marriage is the union of a man and a woman’.

This phraseology is mine, but I didn’t invent the argument. Opponents of marriage equality really did say all these things. They repeatedly invoked the non-negotiable meaning of the word ‘marriage’ as a reason why the law could not be changed, citing the dictionary almost as often as the Bible.

If you’re as old as I am you may also remember when conservatives routinely appealed to the ‘real’ meanings of words to resist feminist demands for non-sexist or gender-inclusive terminology (‘etymologically, “man” just means “person”’), and to protest against the ‘hijacking’ of ‘gay’ (‘don’t let sexual deviants deprive us of a word which—according to my dictionary—means “cheerful or brightly coloured”’). These doughty defenders of the language were also fond of invoking Orwell: they rarely missed an opportunity to equate the linguistic innovations they labelled ‘political correctness gone mad’ with Newspeak, or to describe the ‘PC brigade’ as a new thought police, intent on eliminating not just the words they found offensive, but any worldview opposed to their own.

For decades, the argument that words have non-negotiable meanings has been used by the Right as a stick to beat the Left with. Feminists, anti-racists and campaigners for LGBT rights have all been accused of perverting language and destroying meaning. Now it’s the Left that levels these charges against the Right. Of course it’s important–and urgent–to  resist the new regime in the US, and the rise of the far right elsewhere. But is using the Right’s own (bad) arguments the best way to go about it?

You might answer that question with another: what is the alternative? Am I suggesting we should just shrug our shoulders, and say ‘language changes, deal with it’? The short answer to that is ‘no’. We do have to deal with the fact that language changes–meaning is always in the process of being negotiated–but we should also remember that this doesn’t happen in a vacuum. The things which can influence the way words are used, and therefore what people will take them to mean, include social changes, technological changes, and–sometimes–political interventions.

As a concrete historical example, consider the word ‘rape’. The earliest meaning of ‘rape’ recorded in the Oxford English Dictionary is ‘the act of taking by force, especially the seizure of property by violent means’. It subsequently developed a more specialised use, referring specifically to the taking of women by force: it was applied to the practice of bride abduction, as well as to sexual assaults committed without the intention to marry the victim. The framing of rape as a crime, in either case, was still about taking what did not belong to you: a woman could not be raped by her husband (or in the case of an enslaved woman, her master), since he was already her legal owner.

There are still places in the world where rape is treated as a crime of property, but in the part of the world where I live this has changed. Today, English law defines ‘rape’ as an act of penile penetration to which consent has not been given (or to which it cannot validly be given because the person concerned is underage or incapacitated). There are still, as we know, many arguments (and myths) about what constitutes consent, but it’s generally agreed that consent is what’s at issue. And while this shift in the meaning of ‘rape’ reflects a long term historical shift, both in attitudes to violence and in the legal status of women, it also reflects the more specific influence of feminist campaigns, which explicitly challenged the definitions found both in expert (e.g. legal) sources and in everyday talk.

Another form of political intervention that can influence the way words are used involves appropriating your opponent’s words, reinflecting them to express a meaning that’s at odds with the original intention, and circulating the result as widely as possible. The ‘alternative X’ jokes mentioned earlier, which ridicule Kellyanne Conway’s attempt to rebrand lies as ‘alternative facts’, are one example; another is the way some of the government agencies Trump has gagged have adopted ‘alt’, as in ‘alt-right’, in naming the unofficial social media accounts they’ve set up in defiance of the gag (for instance, the National Park Service’s new Twitter handle is @AltNatParSer).

Most recently there’s been a feminist intervention, reacting to reports that women working for the Trump administration had been ordered to ‘dress like women’. The illustration at the top of the post is an example of the most common response: posting photos of yourself, or other women, wearing anything from a tux to a spacesuit. Other responses employed words to undermine the intended meaning (‘dress in a feminine manner’) by refusing to accept its sexist premise (‘there’s a certain way women should dress’) and recasting it as a vacuous tautology. Several tweets offered step-by-step instructions like (1) Be a woman. (2) Put on any clothes you like. (3) That’s it.

This kind of ‘rapid response’ intervention differs from a campaign to change the way people understand the word ‘rape’. The stakes are lower, and the effects will be more limited. It’s unlikely, for instance, that being ridiculed on Twitter will make the people responsible for the ‘dress like a woman’ edict feel obliged to reverse their policy (though I do think humour has its uses when you’re dealing with people this self-regarding–they’d almost certainly prefer fear and anger, which make them feel powerful, to mockery and disrespect). But the trick is to keep doing it: keep contesting the credibility of what they say, keep disputing their assumptions and their logic, keep showing that there’s more than one way to define what’s ‘alternative’ or what it means to ‘dress like a woman’. Keep puncturing the illusion–because it is an illusion–that the powerful, like Humpty Dumpty, can just decide what words will mean for everyone.

Feminism has a long history of trying to change the way words are used. We’ve invented new words and we’ve redefined old ones. We’ve argued about what words mean, both with our opponents and among ourselves. Arguments about meaning–and attempts to influence it–play a role in every kind of politics. If that’s an abuse of language, then all of us are guilty.

 

On banter, bonding and Donald Trump

In my last post I argued that gossip–personal, judgmental talk about absent others–is not the peculiarly female vice our culture would have us believe. Both sexes gossip. But one common form of male gossip, namely sexualised talk about women, is made to look like something different, and more benign, by giving it another name: ‘banter’.

A week after I published that post, along came That Video of Donald Trump doing the very thing I was talking about–and trying to excuse it, predictably, by calling it ‘locker room banter’.

There are many things I don’t want to say on this subject, because they’ve already been said, sometimes very eloquently, in countless tweets and blog posts and columns. I don’t need to repeat that Trump is a misogynist (which we already knew before we heard the tape). I don’t need to upbraid the news media for their mealy-mouthed language (the Washington Post described the recording as containing ‘an extremely lewd conversation’, while the Guardian has referred to it as a ‘sex-boast tape’–as if the issue were the unseemliness of bragging or the vulgarity of using words like ‘tits’). But what I do have something to say about is banter itself: what it does and why it matters.

A lot of the commentary I’ve read about the tape does not, to my mind, get to the heart of what’s going on in it. So, that’s where I want to begin. Here’s a (quick and very basic) transcription of the start of the recorded conversation: Trump, the Hollywood Access host Billy Bush and a third, unidentified man are talking on a bus which is taking them to the set of a soap opera where Trump is making a guest appearance.

THIRD MAN: she used to be great. she’s still very beautiful

TRUMP: you know I moved on her actually you know she was down in Palm Beach and I moved on her and I failed I’ll admit it

THIRD MAN: woah

TRUMP: I did try to fuck her she was married

THIRD MAN: [laughing] that’s huge news there

TRUMP: and I moved on her very heavily in fact I took her out furniture shopping she wanted to get some furniture and I said I’ll show you where they have some nice furniture. I took her out furniture– I moved on her like a bitch [laughter from other men] but I couldn’t get there and she was married. then all of a sudden I see her and she’s now got the big phony tits and everything she’s totally changed her look

In this sequence Trump is not boasting about having sex: he’s telling a personal anecdote about an occasion when he didn’t manage to have sex (‘I failed I’ll admit it’). He then returns to what seems to be the original topic, how to assess the woman’s physical attractiveness. The first speaker’s turn suggests that this has diminished over time (‘she used to be great’), but whereas he thinks ‘she’s still very beautiful’, Trump’s reference to her ‘big phony tits’ implies that he no longer finds her as desirable.

What’s going on here is gossip. Like the young men’s gossip I discussed in my earlier post, this is judgmental talk about an absent other which serves to reinforce group norms (in this case, for male heterosexual behaviour and for female attractiveness). It’s also male bonding talk: by sharing intimate information about himself–and especially by admitting to a failed attempt at seduction–Trump positions the other men as trusted confidants.

It’s not clear whether the discussion of the woman’s appearance has reached its natural end, but at this point, as the bus nears its destination, Billy Bush intervenes to point out the soap actress Trump is scheduled to meet, and she becomes the next topic.

BUSH: sheesh your girl’s hot as shit. In the purple

THIRD MAN & BUSH: woah! yes! woah!

BUSH: yes the Donald has scored. Woah my man!

TRUMP: look at you. You are a pussy.

[indecipherable simultaneous talk as they get ready to exit the bus]

TRUMP: I better use some tic-tacs in case I start kissing her. You know I’m automatically attracted to beautiful–I just start kissing them. It’s like a magnet just kiss I don’t even wait [laughter from other men] and when you’re a star they let you do it. You can do anything

BUSH: whatever you want

TRUMP: grab them by the pussy [laughter]  do anything.

Trump’s contribution to this extract looks more like the ‘sex boast’ of the news headlines. But we shouldn’t overlook the fact that this too is an enactment of male bonding. Trump, the alpha male of the group, takes centre stage, but the other men support him throughout with affiliative responses–saying ‘woah’ and ‘yes’, echoing his sentiments (‘Trump: you can do anything’/ ‘Bush: whatever you want’), and above all, greeting his most overtly offensive remarks with laughter. They laugh when he says he doesn’t wait for permission to kiss a woman; they laugh again when he mentions ‘grab[bing] [women] by the pussy’. (You can listen for yourself, but my assessment of this laughter is that it’s appreciative rather than embarrassed, awkward or forced.)

The transgressiveness of sexual banter–its tendency to report markedly offensive acts or desires in deliberately offensive (or in the media’s terms, ‘lewd’) language, is not just accidental, a case of men allowing the mask to slip when they think they’re alone. It’s deliberate, and it’s part of the bonding process. Like the sharing of secrets, the sharing of transgressive desires, acts and words is a token of intimacy and trust. It says, ‘I am showing that I trust you by saying things, and using words, that I wouldn’t want the whole world to hear’. It’s also an invitation to the hearer to reciprocate by offering some kind of affiliative response, whether a token of approval like appreciative laughter, or a matching transgressive comment. (‘I trust you, now show that you trust me’.)

When a private transgressive conversation becomes public, and the speaker who said something misogynist (or racist or homophobic) is publicly named and shamed, he often protests, as Trump did, that it was ‘just banter’, that he is not ‘really’ a bigot, and that his comments have been ‘taken out of context’. And the rest of us marvel at the barefaced cheek of these claims. How, we wonder, can this person disavow his obvious prejudice by insisting that what he said wasn’t, ‘in context’, what he meant?

What I’ve just said about the role of transgressive speech in male bonding suggests an answer (though as I’ll explain in a minute, that’s not the same as an excuse). Public exposure does literally take this kind of conversation out of its original context (the metaphorical ‘locker room’, a private, all-male space). And when the talk is removed from that context, critics will focus on its referential content rather than its interpersonal function. They won’t appreciate (or care) that what’s primarily motivating the boasting, the misogyny, the offensive language and the laughter isn’t so much the speakers’ hatred of women as their investment in their fraternal relationship with each other. They’re like fishermen telling tall tales about their catches, or old soldiers exaggerating their exploits on the battlefield: their goal is to impress their male peers, and the women they insult are just a means to that end.

As I said before, though, that’s not meant to be an excuse: I’m not suggesting that banter isn’t ‘really’ sexist or damaging to women. On the contrary, I’m trying to suggest that it’s more damaging than most critical discussions acknowledge. Banter is not just what commentators on the Trump tape have mostly treated it as–a window into the mind of an individual sexist or misogynist. It’s a ritualised social practice which contributes to the maintenance of structural sexual inequality. This effect does not depend on what the individuals involved ‘really think’ about women. (I have examples of both sexist and homophobic banter where I’m certain that what some speakers say is not what they really think, because they’re gay and everyone involved knows that.) It’s more a case of ‘all that’s needed for evil to flourish is for good men to go along with it for the lolz’.

You might think that in Trump’s case a lot of men have chosen to do the decent thing. Since the tape became public, male politicians have been lining up to condemn it. A formula quickly emerged: after Jeb Bush tweeted that, as a grandfather to girls, he could not condone such degrading talk about women, there followed a steady stream of similar comments from other men proclaiming their respect for their daughters, sisters, wives and mothers.

But to me this rings hollow. Some of it is obvious political score-settling, and far too much of it is tainted by what some theorists call ‘benevolent sexism’ (no, Paul Ryan, women should not be ‘revered’, they should be respected as equal and autonomous human beings; and no, they aren’t just deserving of respect because they’re ‘your’ women). But in addition, I’d bet good money that all the men uttering these pious sentiments have at some point participated in similar conversations themselves. When Trump protested that Bill Clinton had said worse things to him on the golf course, I found that entirely plausible (though also irrelevant: Trump can’t seem to grasp that Bill’s behaviour reflects on Bill rather than Hillary). Whatever their actual attitudes to women, as members of the US political elite these men have had to be assiduous in forging fraternal bonds with other powerful men. And wherever there are fraternal bonds there will also be banter.

Feminists generally refer to the social system in which men dominate women as ‘patriarchy’, the rule of the fathers, but some theorists have suggested that in its modern (post-feudal) forms it might more aptly be called ‘fratriarchy’, the rule of the brothers, or in Carole Pateman’s term, ‘fraternal patriarchy’. Banter is fraternal patriarchy’s verbal glue. It strengthens the bonds of solidarity among male peers by excluding, Othering and dehumanising women; and in doing those things it also facilitates sexual violence.

Male peer networks based on fraternal solidarity are a common and effective mechanism for informally excluding women, or consigning them to second-class ‘interloper’ status, in professions and institutions which no longer bar them formally. Whether it’s city bankers socialising with clients in strip clubs, or construction workers adorning the site office with pictures of topless models, men use expressions of heterosexual masculinity–verbal as well as non-verbal, the two generally go together–to claim common ground with one another, while differentiating themselves from women. Sometimes they engage in sexual talk to embarrass and humiliate women who are present; sometimes they spread damaging rumours behind women’s backs. These tactics prevent women from participating on equal terms.

I said earlier that when Trump and his companions on the bus talked about women, the women were not the real point: they were like the fish in a fishing story or the faceless enemy in a war story. But that wasn’t meant to be a consoling thought (‘don’t worry, women, it’s nothing personal, they’re just bonding with each other by talking trash about you’). When you talk about people it should be personal–it should involve the recognition of the other as a human being with human feelings like your own. Heterosexual banter is one of the practices that teach men to withhold that recognition from women, treating them as objects rather than persons.

When you objectify and dehumanise a class of people, it becomes easier to mistreat them without guilt. And when you are part of a tight-knit peer group, it becomes more difficult to resist the collective will. According to the anthropologist Peggy Reeves Sanday, rape culture arises where both these conditions are fulfilled–where men have strong fraternal loyalties to each other, and at the same time dehumanise women. In her classic study of fraternity gang-rape, Sanday argues that what motivates fraternity brothers or college athletes to commit rape in groups is the desire of the men involved both to prove their manhood and to feel close to one another. These are typically men whose conception of masculinity will not permit them to express their feelings for other men in any way that might raise the spectre of homosexuality, which they equate with effeminacy and unmanliness. Instead they bond through violence against someone who represents the despised feminine Other.

Heterosexual banter is a regular feature of life in many fraternities, and Sanday identifies it (along with homophobia, heavy use of pornography and alcohol) as a factor producing ‘rape-prone’ campus cultures. One man who was interviewed for her study recalled the way it worked in his fraternity, and how it made him feel:

By including me in this perpetual, hysterical banter and sharing laughter with me, they [the fraternity brothers] showed their affection for me. I felt happy, confident, and loved. This really helped my feelings of loneliness and my fear of being sexually unappealing. We managed to give ourselves a satisfying substitute for sexual relations. We acted out all of the sexual tensions between us as brothers on a verbal level. Women, women everywhere, feminists, homosexuality, etc., all provided the material for the jokes.

Of course there’s a difference between ‘acting out on a verbal level’ and committing gang rape. It’s not inevitable that one will lead to the other. But Sanday suggests that one can help to make the other more acceptable, or less unthinkable. What the man quoted above says about the social and psychological rewards of fraternal bonding also helps to explain why men may be prevailed on to join in with a group assault, even if they wouldn’t have initiated it alone; and why they don’t intervene to stop it.

Whenever I talk or write about male sexual banter, I always hear from some men who tell me they’re deeply uncomfortable with it. I believe them. But my response is, ‘it’s not me you need to tell’. They risk nothing by expressing their discomfort to me. What would be risky, and potentially costly, would be for them to put their principles above their fraternal loyalties, stop engaging in banter and challenge their peers to do the same.

Similarly, it’s pretty easy–assuming your politics lean left of fascism–to criticise the behaviour of Donald Trump. But as necessary as that may be in current circumstances, on its own it is not sufficient. We need to acknowledge that the kind of banter Trump has been condemned for is more than just an individual vice: it is a social practice supporting a form of fraternity that stands in the way of women’s liberty and equality.

Leading questions

Scene: an ordinary suburban home where A and B are getting ready to leave for work. But A’s car keys have gone missing…

A:  You’ve seen my car keys, haven’t you?

B:  Today? No, I don’t think so.

A:  When did I mention today? Just answer the question: you’ve seen my car keys, haven’t you?

B:  OK, no.

A:  You’re quite certain of that, are you?                          

B:  Well, no, I told you I don’t think—

A:  So you have seen them, then.

B:  I’m not sure…

A:  They were on the sideboard, weren’t they?

B:  I don’t know, I didn’t notice

A:  You’re telling this household you didn’t notice the car keys on the sideboard?

B:  um—I—

A:  I put it to you that you’re lying: the keys were on the sideboard

B:  Well, I suppose they could have been, but—

A:  Were they there or not?

B:  (confused silence)

A:  It’s a simple question, B. The keys were on the sideboard, weren’t they?

(B breaks down in tears, but at that moment C rushes in to say that the keys have been found in A’s jacket pocket, along with a Twix wrapper and 74p in change)

If someone you lived with behaved like A in this (made-up) vignette, you’d probably tell them to f*** off and stop interrogating you. Such overtly hostile questioning is rare in everyday conversation, and if it does happen you’re entitled to protest. But there’s one real-life situation where you can’t just tell the questioner to stop: the cross-examination of a witness in court.

Cross-examination is the bit where a witness is questioned by the lawyer acting for the ‘other side’. If the prosecution in a burglary case calls an eye-witness who says she saw the defendant breaking into someone’s house, the defence will want to test the strength of her evidence, and if possible take issue with her version of events. Maybe she saw someone who wasn’t, in fact, the defendant; maybe she didn’t see anything at all. If her answers suggest that her original account was mistaken, dishonest or confused, that could introduce the ‘reasonable doubt’ which will get the defendant acquitted.

There’s a reason I’ve been thinking about this recently. Earlier this month, Buzzfeed published the text of a letter written by a woman who had been raped while she lay unconscious behind a dumpster. The letter was addressed to Brock Turner, the man who had been convicted of assaulting her. Parts of it were read out in court, and when Turner was sentenced to only six months in prison (a decision which is now the focus of a campaign to recall the judge responsible) its author released the full version for publication.

As many commentators have said, the letter is a powerful document, bearing eloquent witness to the impact of sexual violence on a woman’s life. But I was also struck by what it says about the language of cross-examination. The writer describes the questions put to her by Turner’s lawyer as

…invasive, aggressive, and designed to steer me off course, to contradict myself, my sister, phrased in ways to manipulate my answers.

She goes on to give an example of this manipulative phrasing:

Instead of his attorney saying, Did you notice any abrasions? He said, You didn’t notice any abrasions, right?

‘You didn’t notice any abrasions, right?’ is what lawyers call a ‘directive leading question’: its grammatical form directs the addressee to a particular, preferred answer. My car keys vignette begins with another example: ‘you’ve seen my car keys, haven’t you?’ Grammatically, this is a ‘tag question’, a statement with a question tagged onto the end which invites the addressee to confirm the truth of the statement. The preferred answer to ‘you’ve seen my car keys, haven’t you?’ is ‘yes [I have]’; if the question had been ‘you haven’t seen my car keys, have you?’ the preferred answer would be ‘no [I haven’t]’. ‘You didn’t notice any abrasions, right?’ predicts ‘no [I didn’t]’. Whether the preferred answer is ‘yes’ or ‘no’, the point is that tag questions favour one answer over others. You don’t have to give the preferred answer, but avoiding it takes more effort, and if you repeatedly withhold confirmation you may come across as evasive or obstructive.

There are other, less directive ways to ask for information. If the question were ‘have you seen my car keys?’—grammatically a yes/no question rather than a tag question—it would still be ‘leading’ in the legal sense, because it presupposes that there are some car keys which the addressee either has or hasn’t seen. A non-leading question would be something like ‘what did you see?’ (not very likely in the lost car keys scenario, but a reasonable thing to ask someone who claims they witnessed a crime.) But ‘have you seen my car keys’ and ‘did you notice any abrasions’  are not directive leading questions, because the linguistic form does not imply that one answer is preferable to the other.

Last year, the forensic psychologist Jacqueline Wheatcroft called for directive leading questions like ‘you’ve seen my car keys, haven’t you?’ to be banned in court proceedings.  She expressed particular concern about their use in rape and sexual assault trials. These cases—if they get to court at all—often turn on which of two competing accounts the jury believes. In that situation the main prosecution witness will be the complainant, and it’s likely that the defence’s cross-examination will focus on trying to discredit her account. Directive leading questions are commonly employed for that purpose, and this can make testifying in court even more traumatic for victims.

As an example Wheatcroft cites the case of Frances Andrade, who committed suicide in 2013 after giving evidence against her former teacher Michael Brewer at his trial in Manchester (he was subsequently found guilty of indecently assaulting her, and sentenced to six years in prison). One of the questions put to Ms Andrade during cross-examination was: ‘utter fantasy, is it not?’ She was repeatedly presented as a liar and a fantasist, an experience which she described to several people as feeling like another assault.

The standard response to this kind of concern is that yes, trials can be horrible for victims, but people accused of serious crimes are entitled to a defence: robust questioning is necessary to test the strength of the case against them. So it’s interesting that Jacqueline Wheatcroft’s argument against directive leading questions isn’t just about their negative effect on the victim. Her research suggests that directive leading questions can undermine the larger aim of delivering justice, because they make it more likely that people will give factually inaccurate answers.

Wheatcroft and her colleague Sarah Wood conducted a study in which 80 subjects watched a four-minute video clip, and then answered a series of questions (orally, to simulate courtroom conditions) about the events they had seen in the video (it showed a reconstruction of a real crime, where a man followed a young woman home and then entered her house). All the questions were of the ‘leading’ type, and required a simple yes or no answer, but the subjects were split into two groups, with one group responding to non-directive questions like ‘was the street called Willow Street?’ while the other half were asked directive leading questions like ‘the street was called Willow Street, wasn’t it?’

The study found that the non-directive questions elicited a higher percentage of accurate answers. Although the experimental setting was presumably less stressful than an actual cross-examination in court, the subjects were still susceptible to the pressure a directive question exerts to accept its embedded presuppositions, even if they misrepresent reality.

Some directive questions are especially confusing because they embed more than one potentially disputable presupposition. An example in my ‘car keys’ drama is ‘so, you’re telling this household you didn’t notice the car keys on the sideboard?’ This (a) presupposes that the car keys were on the sideboard (rather than somewhere else) and (b) asserts that the addressee, B, must have noticed them. While B debates which of these propositions to challenge, she becomes noticeably hesitant, allowing A to jump in with an interpretation of her hesitancy as a sign that she isn’t being honest.

Most people don’t realise that the form of a question can affect their ability to give an accurate answer. Wheatcroft and Wood asked their research subjects to rate their confidence in each answer they gave on a scale from ‘not at all confident’ to ‘absolutely certain’. On this measure there was very little difference between the non-directive and directive questions, although objectively the directive questions elicited significantly more inaccurate answers.

One way to address this issue is through witness preparation: explaining to witnesses before a trial what kinds of questions they are likely to face, providing concrete examples and possibly using role-play to give a witness practice in responding. Wheatcroft and Wood’s study tested the usefulness of a number of witness preparation strategies. They split both their participant-groups into four subgroups: one was a control group, receiving no special preparation, while the others were prepared in different degrees of detail. One group was warned in general terms that the experimenters might use leading questions, another was presented with examples of what to look out for, and a third was told they could ask for questions to be repeated or rephrased.

Though one of these strategies (giving examples) appeared to work better than the others, its effect was still quite limited: all groups remained more likely to give factually wrong answers if the form of a question was directive. As the researchers point out, that isn’t necessarily an argument against witness preparation, which may help witnesses in other ways (by making them feel less anxious, for example). But preparation does not solve the problem of inaccurate testimony. As the researchers sum up their conclusions:

Where directive leading questions are incorporated into cross-examination procedure… a witness’s overall accuracy will be reduced regardless of the type of preparation the witness receives.

This study challenges the belief that ‘robust’ questioning is justified by the need to test the evidence rigorously. There’s nothing rigorous about questioning people in a way that confuses them and prompts them to make mistakes. But if we’re interested in the specific issues that arise in sexual assault trials, it seems clear that we can’t just focus on the linguistic form of the questions put to complainants. Challenging the assumptions of a particular question isn’t easy; but what’s even harder is challenging the more general assumption that women are ‘liars and fantasists’.

It’s because of that general assumption that complainants are routinely faced with questions like the one put to Frances Andrade—‘utter fantasy, is it not?’ Rephrasing that as a non-directive question (like ‘is this a fantasy?’) would make very little difference. However it’s formulated, it’s not in any meaningful sense a test of the witness’s honesty and reliability. It’s a rhetorical device for suggesting to the jury that the witness is lying, and it exploits the widespread belief that false accusations of rape are more common than rape itself.

The letter to Brock Turner includes a long list of the questions the writer was asked by Turner’s lawyer:

How old are you? How much do you weigh? What did you eat that day? Well what did you have for dinner? Who made dinner? Did you drink with dinner? No, not even water? When did you drink? How much did you drink? What container did you drink out of? Who gave you the drink? How much do you usually drink? Who dropped you off at this party? At what time? But where exactly? What were you wearing? Why were you going to this party? What’ d you do when you got there? Are you sure you did that? But what time did you do that? What does this text mean? Who were you texting? When did you urinate? Where did you urinate? With whom did you urinate outside? Was your phone on silent when your sister called? Do you remember silencing it? Really because on page 53 I’d like to point out that you said it was set to ring. Did you drink in college? You said you were a party animal? How many times did you black out? Did you party at frats? Are you serious with your boyfriend? Are you sexually active with him? When did you start dating? Would you ever cheat? Do you have a history of cheating? What do you mean when you said you wanted to reward him? Do you remember what time you woke up? Were you wearing your cardigan? What color was your cardigan?

Grammatically speaking, these questions are a mixed bunch, and none of them are unequivocally directive. But that doesn’t mean they’re unproblematic. As the letter-writer herself commented, the lawyer’s goal in asking them was to discredit her by any means necessary:

I was pummeled with narrowed, pointed questions that dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who had me half naked before even bothering to ask for my name.

What motivates defence lawyers to ask questions like these is their understanding that we as a society are inclined to make excuses for men like Brock Turner, and conversely to blame women for provoking or deserving what is done to them. If that were not the case, questions like ‘how much do you usually drink’ and ‘are you sexually active’ (let alone ‘when did you urinate’ and ‘what color was your cardigan’) would serve no purpose.

So, while I support Jacqueline Wheatcroft’s call to ban questions whose form confuses witnesses and prompts inaccurate answers, I also support the JURIES campaign, which calls for jurors in sexual violence cases to be briefed with factual information designed to counter the myths and stereotypes we’ve all been fed throughout our lives. Our justice system is adversarial; but if its aim is to deliver justice, cases must be won by marshalling evidence, not exploiting prejudice.

Passive aggressive

In 2014, someone set up a Twitter account called ‘Name the Agent’ as part of a feminist campaign challenging the way the media reported violence against women. Specifically, the campaign criticized the use of the passive voice in news headlines like ‘Woman raped while walking her dog’. This headline fails to mention that a man committed the crime. It presents rape either as something that ‘just happens’ to women, or as something for which women are indirectly responsible–as if the woman was raped because she was walking her dog, and not because a man decided to rape her. The campaign called on the media to abandon the passive in favour of active-voice headlines like ‘Man rapes woman dog-walker’.

Complaints about the passive have a long history. Advice to avoid it has been around for the best part of a century: I imagine many people reading this were taught at school that it was ‘bad style’. Originally the reasons for this judgment had nothing to do with politics: commentators in the 1930s said that active sentences were ‘strong’ while passive sentences were ‘weak’. The connection with politics was made by George Orwell, whose 1946 essay ‘Politics and the English Language‘ included ‘never use the passive where you can use the active’ on a list of rules for combatting the politically-motivated abuse of language. This helped to popularize the now-common idea that the passive isn’t just bad style, it’s a tool used by the powerful to conceal unpalatable truths and manipulate public opinion.

The feminist argument that passives are used to conceal men’s responsibility for violence against women belongs to this post-Orwellian tradition. But in this post I’m going to try to explain why I don’t think the argument is convincing–why it’s really not as simple as ‘active good, passive bad’.

Before I go on, let’s just run through some grammatical basics.

Below is a simple active sentence. It puts the agent—the doer of an action—in the grammatical subject position, which in English normally means before the verb.

A man attacked a woman

And here’s the passive voice equivalent:

A woman was attacked by a man

In the passive version the subject is ‘a woman’, the person affected by the action, while the agent, ‘a man’, has been relegated to a ‘by’ phrase after the verb. This ‘by’ phrase is optional. You can remove it and still end up with a grammatical sentence, like this:

A woman was attacked

This is a passive sentence with agent deletion: the attacker has disappeared, leaving the sentence to focus entirely on the woman and what happened to her. Agentless passives are common in news reports and headlines: ‘Woman raped while walking her dog’ is an example.

Agentless passives are also common in legal proceedings, and in that context the feminist argument has some force. Research has shown that men who are accused of sexual violence, and the lawyers who represent those men, very often make strategic use of what the linguist Susan Ehrlich calls ‘the grammar of non-agency’, including agentless passives. In her book Representing Rape,  Ehrlich analyses a sexual assault trial in which the defence lawyer asks his client questions like

‘I take it the sweater was removed?’

It’s not hard to see what the lawyer hopes to achieve by choosing an agentless construction that doesn’t specify who removed the sweater. If the court thinks the complainant took off her own clothes, that will support–or at least, not contradict–the defence’s argument that she consented to sex.

As Ehrlich says, it’s only to be expected that defendants and their lawyers will use this strategy. It’s more surprising, and perhaps more worrying, that the same tendency to downplay men’s agency has been observed in the language used by judges. When the researcher Linda Coates and her colleagues analysed the language used in judgments on sexual assault cases in Western Canada, they found many examples of judges using agentless passives like this:

There was advantage taken of a situation that presented itself.

This statement was made in the judgment on a case where a ten year-old girl had been sexually assaulted by a stranger in her home. The ‘situation’, in other words, was the presence of a child in her own bedroom, and it did not magically ‘present itself’, it was engineered by the defendant. A jury had found the defendant guilty, but the judge chose to minimize the seriousness of his offence by describing it in a way that implied he had no agency at all–as if he merely reacted, as anyone might, to the circumstances in which he (inexplicably) found himself.

The judge’s statement is an egregious example of ‘the grammar of non-agency’. But is the use of the passive the main problem here? I think we can see it isn’t if we recast the sentence in the active voice:

The defendant/Mr X took advantage of a situation that presented itself.

This reformulation names the agent, but it doesn’t solve the problem. The vague wording still glosses over what the defendant actually did, and the sentence still presents him as simply reacting to a situation that was not of his own making.

Naming the agent is not the same thing as holding him responsible for his actions. Conversely, not naming the agent doesn’t have to mean concealing or denying his actions.

We can see this if we go back to the newspaper headline ‘Woman raped while walking her dog’, which was criticized for failing to mention the key fact that the crime was committed by a man. It’s true that the headline doesn’t explicitly describe the perpetrator as a man. But it’s not true that the effect is to obscure his maleness from the reader. The word raped, which does appear in the headline, cues the reader to activate what psychologists call a ‘schema’—a sort of mental template for the kind of event the word is applied to. Part of that schema is the information that rapists are prototypically male. For many English-speakers rapists are male by definition, because the meaning of the word rape in their mental dictionary includes the idea of penetration with a penis. But even if they define the word more broadly, their schema will still incorporate the knowledge that rapists are almost always men. If the suspect in a rape case were female, you can be sure the report would say so, precisely because it would be so unusual.

In practice, therefore, the agent-naming headline ‘man rapes woman dog-walker’ communicates no more information than ‘woman raped while walking her dog’. The difference is only that the first version mentions the attacker’s sex explicitly while the second relies on the reader to infer it.

But if the two versions communicate the same information, why do headline writers so often favour the passive? If that’s not about excusing men and/or blaming women, what is it about?

The answer is, it’s about focus. When you choose between the active and the passive, you’re also choosing what to put in the grammatical subject position. In crude terms, you’re deciding what the sentence is about. And you don’t always want it to be about the agent. For instance, if a high-profile public figure is assassinated, the breaking news headline is more likely to be ‘President shot’ than ‘Gunman shoots president’. The story isn’t about the shooter: what makes it news is the identity of the victim.

In stories like ‘Woman raped while walking her dog’, the main news is simply that a rape has been committed. The report can’t say much about either the attacker or the victim: his identity is not yet known, while hers is legally protected. (That’s probably why the writer added the dog-walking detail—not to imply that the victim put herself at risk, but to enable readers to relate to her as an ordinary person engaged in an everyday activity.) In some circumstances the headline-writer might choose to focus on the attacker–for instance, if he’d been caught and arrested, or if the report concerned the latest attack by a serial offender. But if the attacker is just an unidentified, generic ‘man’, there’s no compelling reason to focus on him. It isn’t news to anyone that rape is committed by men.

So, I don’t think there’s a media conspiracy to deny men’s responsibility for violence by using passive-voice headlines. But as I’ve already pointed out, what actually gets communicated doesn’t depend exclusively on the intentions of the speaker or writer. It also depends on the inferences made by hearers or readers. In theory, a writer’s linguistic choices could affect readers’ interpretations even if that wasn’t the writer’s intention. Recognizing that possibility, a number of researchers have run experiments to investigate whether the grammatical framing of a report makes any difference to readers’ judgments of the case.

The basic procedure involves dividing a sample of research subjects into two groups, presenting one group with an account of sexual violence framed in the active and the other with a matched account in the passive, and then asking subjects to rate (a) the perpetrator’s degree of responsibility, (b) the victim’s degree of responsibility and (c) the degree of harm to the victim. Subjects may also be asked to complete a questionnaire about their attitudes to sexual violence, so researchers can see how their judgments relate to their pre-existing beliefs.

I’ll start with what you might call the good news. These studies suggest that we’re not dealing with a form of Orwellian thought control: readers who don’t already subscribe to rape myths are not susceptible to the influence of language. Their judgments are the same regardless of which report they’ve read. The grammar of a report only makes a difference to the judgments of people who have high RMA scores (RMA stands for ‘rape myth acceptance’. And before you ask, yes, gender does play a role here: men on average have higher RMA scores than women, so it’s mostly men who are susceptible.)

The next question is how grammar affects the perceptions of those subjects who are influenced by it. The answer isn’t clear cut: different studies have found different effects. The first group of researchers to do the experiment found what they’d predicted: subjects who read a passive-voice report judged perpetrators less responsible than those who read the active-voice version. But later studies found the opposite: subjects who were influenced by grammar judged perpetrators more responsible after reading a report in the passive.

This second pattern doesn’t fit with the theory that the passive downplays men’s agency and shields them from blame. To explain why it’s been found in some studies, we need to consider what else you can do with passive sentences.

One researcher who has thought about this is Tamar Holoshitz. She conducted one of the experiments which found that passive reports prompted higher ratings of perpetrator responsibility; she also analysed the language used by prosecutors in domestic violence cases, where she noticed that they often referred to the same act or event using both active and passive sentences. For instance:

The defendant gave her a single blow to the left eye

She was admitted [to hospital] after being hit in the eye, suffering from trauma and an orbital fracture

These two sentences are designed to do different things. The first directs attention to the perpetrator and describes what he did. The second directs attention to the victim and describes the consequences of the assault for her. The active sentence names the agent; the passive sentence names the harm.

Holoshitz argues that prosecutors use both these strategies to maximize their chances of getting a conviction. The first is necessary (to convict a defendant you have to show that he committed the crime he is on trial for), but prosecutors know that on its own it may not be sufficient. On any jury there are likely to be people who think violence against women is acceptable under some conditions (if it was ‘just a slap’, if she was ‘asking for it’, if he just lost control and lashed out without really meaning to, etc.). If you want jurors who think like this to return a guilty verdict, you need to address their belief that some degree of force is acceptable. Naming the agent doesn’t do that (they’re not disputing the claim that he punched her), but naming the harm–presenting an account that emphasizes the effect of his violence on the victim–gives you some chance of blocking the standard excuses (‘this wasn’t just a slap. He put her in hospital. You don’t break someone’s bones without meaning to hurt them’). Holoshitz thinks it’s this emphasis on harm that her experimental subjects were responding to when they attributed more responsibility to perpetrators after reading reports in the passive.

What all this boils down to is that passives can serve more than one purpose. The prosecutors in Holoshitz’s study used the passive strategically to highlight the effects of domestic violence on women; the defence lawyers in Susan Ehrlich’s research used it strategically to downplay the agency of their clients. They used the same grammatical construction, but in different ways to suit their different aims.

What matters for feminist purposes is the aims: we can criticize particular uses of the passive without suggesting it should never be used at all. If we do that, we won’t just catch the cases where it works against the interests of women, we’ll also catch the cases where it can work in women’s favour. Language is a resource; let’s not make it into a straitjacket.

Thanks to Tamar Holoshitz for allowing me to make use of her unpublished thesis ‘More than Words: Passive Voice Use in Courtroom Depictions of Violence Against Women’ (Harvard University, 2010).