Words are, perhaps, the most powerful of human creations. Through words, we see and unsee. We celebrate and condemn. We build and destroy. And through words, we create and exert the power of the law. Lisa Washington’s Survived & Coerced: Epistemic Injustice in the Family Regulation System reminds us of this potent symbiotic relationship between words and the law.
Drawing from her experience as a public defender in New York City, Washington expounds in her article how the family regulation system (a.k.a. child welfare system) procures, fosters, and engages in epistemic injustice to reproduce and legitimize its purported goal of child safety whilst it serves as an arm of the carceral state to further marginalize women, the poor, and people of color. Epistemic injustice, coined in political philosophy by Miranda Fricker, attempts to depict the connection between power, oppression, and prejudice in the realms of knowledge production and reproduction. Fricker defines the concept as the unfair treatment of a person or a group in their capacity to know or describe their experiences. Such unfair treatment harms people in their capacity as knowers as they are subjugated by societal power structures expressed in stereotypical assumptions. The concept of epistemic injustice, thus, captures the long-discussed disparity by jurists, activists, and feminists such as Sojourner Truth that some voices, forms of knowledge, stories, and experiences are more audible, more important, easily believed, and heavily weighed than others.
This form of injustice has recently received increased attention in legal scholarship, mainly in criminal law and evidence (i.e., women’s credibility in domestic violence, sexual violence and sexual harassment cases, punishment, and impeachment rules). However, epistemic injustice has also started to be introduced in other areas such as disaster law, movement law, procedural law, and family law. Washington’s piece is one of the first to bring epistemic injustice into the last.
Using Fricker’s theory as a framework, Washington analyzes the interactions of mothers whom the law identifies as domestic violence survivors/victims with Child Protective Services (CPS). Her analysis is particularly interesting because she does not restrict it to the usual testimonial injustice analysis. Most of the legal scholarship in the area of epistemic injustice focuses on this type of injustice that refers to the discounting of survivors’ experiences and testimony because of stereotypes. For example, scholars have shown how victims of sexual violence suffer from a testimonial deficit because they are not believed due to stereotypes associated with gender. Washington shows us how parents (mostly mothers) in the family regulation system are discounted, for instance, by social workers on their own needs because of stereotypes associated with class, gender, and race.
But Washington’s more significant contribution to the literature comes by delving into a hermeneutical injustice analysis as well. Fricker defines this category as the process of obscuring someone’s experiences and knowledge of their situation from our collective understanding owed to structural identity prejudices. The clearest example is sexual harassment. Before its creation as a legal action and as a concept in the language, its inexistence in our jargon because of patriarchal prejudices prevented victims from conceptualizing their experience and us from understanding the violence. The same happened with marital rape. In this piece, Washington shows us how by ignoring the knowledge of domestic violence survivors we obscure the harms the system causes/forces on them and how we deprive them of contributing with their experiences to the formulation of public policy and legislation.
In sum, by using both categories of epistemic injustice (i.e., testimonial and hermeneutical), Washington describes the full extent of the harm that both survivors and their families experience due to the law. Her most crucial contributions in this respect are: identifying the concept of lack of insight as the vehicle that legal players such as judges, attorneys, and social workers utilize to operationalize epistemic injustice; and acknowledging, as few others have begun to do, that injustice occurs in testimonial deficit but also in testimonial excess (i.e., when a person is believed more because of positive stereotypes or status).
Through the idea of lack of insight, the legal system is able to insert itself into the lives of survivors and their families and unsee, condemn, and destroy them. As Washington relates from their clients’ experiences, CPS can surveil, separate, and even destroy the lives of domestic violence survivors even when there is no indication of abuse or neglect. CPS does so by positing that because of survivors’ lack of insight into their “abusive situations,” they do not recognize that the conduct of their romantic counterparts as intimate partner violence constitutes child abuse or neglect. Articulating this “lack of insight” is the first step in the family regulation system’s epistemic injustice.
Legal operators unsee survivors by discounting their testimony that they are not victims of domestic violence or that even if they are (in situations in which they have sought the help of the state) their children are not at risk of abuse. Because they resist thinking of themselves and their children as victims, survivors are then seen (construed) as bad mothers who choose their intimate partners over their own children. This stereotypical based on notions of unchastity is used to discount the experiences of survivors, disbelieve them, and condemn them to the many harms that the literature on the family regulation system has highlighted for the last decade such as family separation, the perpetuation of poverty, and incarceration.
This testimonial injustice ends up destroying many families, especially poor families of color, keeping them subjugated within a system that denies their experiences. The focus of the family regulation system is on pathologizing survivors by discounting them instead of focusing on the structural issues associated with poverty such as housing, employment, and medical access. This becomes more evident in Washington’s hermeneutical injustice analysis.
Washington points out that, if parents’ knowledge about child safety was credited, the response of the system would center around families’ actual needs. Instead, the system reifies its idea of child safety and its role as part of the carceral state by not only disbelieving survivors but also by forcing them to articulate the discourse of victimhood that has been socially construed. For instance, to recover their children, survivors are forced to lie in court about what they think about their own situation. They are coerced into swearing that they have been victims of abuse, that their children were at risk, and that they were not previously able to recognize it. In doing so, the state forces survivors to see a reality that does not exist, reproduce and celebrate stereotypical ideas about women/motherhood, and participate in the building of prejudices that subjugate them.
Forcing them to adhere to these legal truths silences their experiences and understandings of the world while it conjures a reality that fosters inequality. Here lies the greatest contribution of Washington’s piece. It reminds us of the law’s power in naming and silencing and the need to continue theorizing about the pervasive harms of epistemic injustice in all areas of our legal system if we wish to live in a more egalitarian society.
