Annie Kuo: Welcome to Discovery, a şěĚŇĘÓƵ podcast where we discuss the biggest legal topics with the law school’s distinguished guests and experts from around the world. I'm your new host Annie Kuo. Our guest today, Professor of Law Noa Ben-Asher at Pace University, recently spoke to the UW 1L class as part of our Perspectives on the Law series. Currently, society is putting a lot of social energy into three domains: gender, race and climate change through three key social justice movements #blacklivesmatter, #metoo and climate change. The class read and discussed Professor Ben-Asher’s riveting article in the Tulane Law Review, which is the first comprehensive diagnosis and assessment of how emotional trauma has become an engine for legal and policy social justice reforms. We also considered Professor Ben-Asher share suggestions of taking caution on the prominence of trauma in social justice advocacy, specifically the negative implications of trauma-centered social justice. Engaging us with these intersecting domains, Professor Noa Ben-Asher is the James D. Hopkins professor of law at Pace University. It is one of the law school's highest honors and recognizes a professor for outstanding scholarship and teaching. Teaching at Pace since 2009, following a fellowship at UCLA, they have taught torts, family law, gender, sexuality and the law. They've also been a visiting faculty member at Harvard Law School and the Columbia School of Law. Welcome.
Noa Ben-Asher: Thank you. Thank you for having me.
AK: In your talk to the students, you identified yourself as a non-binary law professor, Ashkenazi Jew and member of the LGBTQIA community. How did you become interested in social justice as it relates to trauma?
NBA: So, I was born and raised in a country—Israel—founded on narratives of collective and personal trauma. And specifically, the Holocaust loomed large on my generation, as it did on the generation before it, the generation that raised us. So, both on a personal narrative level, and also at the collective level, the idea that the country was founded after a huge traumatic event in Europe, and is justified because of it, really shaped the way that I, and many others like me, came to view justice, at least at the level of nationalism.
On top of that, when I became interested in feminist legal theory, it took me not long to realize that a lot of feminist theory also is based on trauma as a main injury of either patriarchy or sexual abuse. And so, I became interested in both the personal and the collective narratives of trauma and have been tracing the movements towards more acceptance of trauma in the public debate.
AK: In the public debate, especially bringing it to the current day, we've got these three key social justice movements and then we've got Coronavirus. In the context of Coronavirus, how would you define suffering as opposed to the concept of trauma? And do you have any comments on our collective trauma during this pandemic?
NBA: I would start by saying that the Coronavirus definitely—immediately you saw symptoms of what I would say is the beginning of traumatic responses across the culture. But obviously I'm not a psychiatrist. And so, I think the Coronavirus would be a good example of personal suffering, family suffering, national suffering, but also a rupture in the way that lives were lived. And in many levels, we as families, communities, were not prepared for the Coronavirus, didn't know what to make of it. And it caused a great confusion at the institutional level at the levels of families that I think from the outside, and in hindsight, we could say can be viewed as traumatic responses. And possibly now we are—I think we're still in it. We're still, kind of, in the traumatic, maybe, beginning of post traumatic response. And so yeah, that would be my thought about Coronavirus. And also, it has implications for racial justice and social justice in how it impacted certain populations more than others.
AK: It's actually been said even before Coronavirus that we live in a quote unquote age of trauma. Could you tell us a little bit about the rise of modern trauma as a scientific concept and how it's become a defining characteristic of our times.
NBA: So, the concept of modern trauma has been traced by many academic scientists to the end of the 19th century. And specifically, it has become well known through the work of Sigmund Freud on psychoanalysis. And, basically, what happens in the early years of what would become the trauma—the signs of trauma—is that we have in psychoanalysis and new science developing in which male researchers, such as Freud and his colleagues, associate trauma with femininity, and diagnose it through a range of involuntary symptoms such as hysteria, most famously. And the idea that there's a traumatic or repressed event in the past that allegedly occurred in a female patient, and that was understood to be the cause of her emotional distress. So, what the traumatic event was changed with the theory. But that idea comes from psychoanalysis. And in this relationship between the patient and the therapist, it's usually the task of the male therapist to reveal the repressed events in his female hysterical patient.
This concept then travels towards war veterans in the later part of the 20th century, and then into feminist theory to understand events such as World War One, World War Two in veterans, and then sexual violence and post-trauma for rape abuse, domestic abuse. So, it definitely comes from the scientific psychoanalysis and then travels into our understanding of people who are suffering distress and manifesting symptoms.
AK: It's fascinating how, once upon a time, in obstetrics and gynecology, the uterus was seen as this kind of a physical—I think, the uterus means hysteria. And so it's interesting and wonderful that eventually that evolved into, you know, distress as psychological. It doesn't come from a physical root.
So, in 1998, Monica Lewinsky didn't consider herself a trauma survivor, nor did she characterize President Bill Clinton's behavior as abuse of power. But she now credits the #metoo movement for helping her see the light. Could you tell us more about her personal shift of perspective and why this reflects a broader societal shift? And how has this guided reforms regarding sexual violence?
NBA: The Monica Lewinsky affair is fascinating and thought provoking for so many reasons. And the way that I think about it—one of the ways in which I think about it—is to show how cultural ideas about sexual harassment and abuse of power have changed from the 1990s to our times and the Me Too movement is a manifestation of it, but I think the evolution has been gradual. As a side note, I absolutely recommend the TV production called Impeachment: American Crime Story, that is a reenactment of the Monica Lewinsky affair, and she was one of the producers. And so, what happens with Monica Lewinsky is that this is one of the first times in the 1990s that a figure, you know, such as here President Clinton, has an affair. Affairs were not new, but it comes into—it creates a political storm when he's up for impeachment, based on the affair with Monica Lewinsky, about which he lied in another sexual drama that he had with Paula Jones, who was suing him for sexual harassment. Right? So, that's kind of the side story. But what's really interesting is how Monica Lewinsky is perceived by the public in the 1990s. And how she perceives herself how she tells her own story. And her story was that she had an affair with the President. This is during the time that it's happening. And then in the years, the few years that follow, that she was in love with him. She made a mistake. It was a consensual relationship. And then she was betrayed by the President and by the FBI, when they closed her in a hotel room and tried to get testimony out of her.
So, for years she—Monica Lewinsky—insists that she had a consensual affair, it was not a good idea, but she had it and that that was it. After the MeToo movement emerges, one of the main voices is Monica Lewinsky's. And she now reframes the story not as a story of consent. She says, yes, I thought this was a consensual relationship. But now that I have the vocabulary and the understanding of abuses of power, I actually think that my consent was not meaningful. And she publishes this in a magazine and has given several talks about it. And so, for me, the fact that she changed her mind is not the point. The point is that culture has shifted. The relationship between a president in his mid-40s and a young intern is now viewed as abuse of power. Whereas then, in 1998, it was just viewed as, you know, this is what people do. And sometimes they get caught. Poor Bill Clinton, he got caught, right? So, that shift of perspective, I think, is fascinating. And to me, it indicates that trauma has become a primary framework and together with it, abuse of power in order to understand what happens in situations like that.
AK: In your article, you also address rape law, which is different from what happened to Monica and what they don't acknowledge as rape, but also criticisms to what is now the leading standard in rape law, that is surrounding this concept of consent, as well as arguments for replacing the unwelcomeness standard and sexual harassment law, which it's been argued distracts decision makers from the behavior of the accused.
So, what do you think is the future likelihood of success in establishing a more accuser friendly framework of the abuse of power, and what needs to happen to cause that shift?
NBA: The idea of consent has shifted because abuse of power is now understood as a more primary framework. Obviously, it's not everyone, it's a more popular narrative now. The trauma that comes out of the abuse of power, and that that abuse of power happens often, not always, between a powerful man and a less powerful female subordinate in one of those scripts. And so once there is a kind of a cultural understanding and legal understanding that that might be a framework that is valid, then we see not only in the sexual harassment in the workplace, and in rape reform suggestions, but also in Title IX regulation of sexual violence on campuses, we see the idea that perhaps looking for consent is not the main way to address this social injustice. And perhaps the way to consider a relationship improper—either through sexual harassment law, through rape law, through Title IX cases—that the more appropriate framework is did X abuse his power such that he or she harmed Y?
AK: I don't want to just focus on the gender issue exclusively, but could you speak to the abuse of power concept in regards to trauma on these other matters of Black Lives Matter and police reform and climate change?
NBA: The main insight of this piece, and I think one of the main forces of this piece, is to see that what we're seeing is not only in feminist reform: it's also in racial justice reform and in climate justice reform that we are seeing similar structure. And the structure that I know it is, is that by analogy—so within the gender context, we have an abuse of power that according to feminist theory, from the 1970s, to some feminist theories, such as Catherine MacKinnon, males abuse their power and cause female trauma, through subordination, and abuse of power.
We're seeing similar narratives in the racial justice context, specifically around abuse of racial power, and specifically, obviously, around police violence against people of color, especially against black men. And we see definitely the language of racial trauma in the Black Lives Matter content online, but also in calls for legal reform that we're seeing the idea that racial violence causes trauma is prevalent across texts. And the idea that there is abuse of power going on not only at the level of police, but at the level of other institutions, as well. And so, this particular piece says, look, we have this similar structure of trauma and abuse of power, both in gender violence also in racial violence, obviously, they're not the same, we need a lot of nuance to understand the differences between the types of violence and the types of trauma. But in both of them, we're thinking about abuse of power. And we're thinking about trauma, and with climate justice, as well. So, we're seeing narratives around legal justice domains in court papers, in legislation and lobbying about how humans abuse their power, vis-Ă -vis nature, and how humans abuse their power vis-Ă -vis each other in terms of wealthy nations versus less wealthy nations. And this is also then reflected in legislation such as Endangered Species Act to protect polar bears, to protect other types of endangered species from that abuse of power. And also, in litigations against the government by future generation against the US government against other governments. And in those litigations, what's fascinating is that we see also narratives of climate trauma, climate anxiety, and claims about abuse of power. So, in terms of the structure, the article captures this structure across these three social justice domains.
AK: I wonder if you could also summarize the costs of relying on trauma and social justice advocacy, explaining those notes of caution that you wrote on how working with trauma as the framework for justice might actually give us narrower successes, and overlooking broader social injustice is limiting our legal and social imagination and perpetuating these wounded identities that you spoke of.
NBA: If we work from a framework of trauma, if we assume that the main injury of gender injustice is trauma, and that the main injury of racial injustice is trauma, and the main injury of climate injustice is trauma, then we may end up devising legal reform around that. So, we could end up trying to, you know, correct police violence, or we could go to that incident that allegedly creates the trauma and address that. So, it would be police violence, it would be incarceration, it would be, you know, rape reform, it would be sexual harassment reform, and it would be endangered species in the context of climate justice, or it could be, you know, migrant rights, climate migration rights. But the problem is, if we focus on the trauma, which is already the injury point, we're missing the structural inequalities that lead to that injury. If we talk about racial justice, we could start at the level of health care, of education of all those rights that would make it so that many people wouldn't have to interact with the police to begin with. And those topics are often not discussed in terms of the trauma because they're just structural inequalities. And the same rationale works with gender and with climate justice, in which if we solve a lot of the structural inequalities across those legal domains, such as equal pay for women in the workplace, and, you know, childcare and all those issues, too, right to have an abortion, you know, stuff like that, then we may not end up in a situation where we have to address the rape—or at least the rape is not our primary concern, or the sex worker is not our primary concern, because our concern is the broader suffering as opposed to that particular instance where we have identified the trauma.
So, my point is, when we think about social justice reforms, it might make sense to look at the broader picture of inequalities than to look at the end of trauma, when we imagine social justice. Regarding wounded attachments, my insight is as much psychological as it is legal, which is that if you tell someone you know, let's assume the same sex couples who are reading Windsor, the Supreme Court, if you tell someone that they are wounded and injured, at some point, they will adopt that identity or at least believe it in some way. And then you have ended up instead of empowering that person telling them that they have to either feel traumatized or perform the trauma in order for their wrongs to be addressed. But many times, wrongs happen, and we don't suffer trauma, or the person is not presenting trauma in the correct, quote unquote, correct way. And then those situations, those injuries go unseen because of trauma.
AK: Yeah, I imagine there's a delicate balance between paralyzing someone with the victim mentality versus looking for structural solutions to their plight.
NBA: Correct. And the tricky thing about trauma is that it is at the same time, quite real, in the sense that many people experience true trauma, what seems to be how scientific evidence sees trauma. And so, at the same time, trauma is real and prevalent in our culture, in Western culture and in many cultures. But at the same time, it is also used rhetorically in order to promote legal arguments. So, trauma is tricky in that way. In that sense, we could say we live in an age of trauma where it is just all over the cultural zeitgeist and the legal zeitgeist. And the question is, where's that leading us?
AK: I just loved the focus on how the rhetoric and logic of trauma in social justice advocacy needs to be examined for how we can do better to solve these societal problems.
After the same sex marriage decision was passed by the Supreme Court, you wrote an article in response called “Conferring Dignity” in the Harvard Journal of Gender and the Law. The language handed down with that decision stirred up some things in you that you wanted to address and did. Could you tell us more about that moment, in your response?
NBA: When the Supreme Court decided the case of Windsor—so this is before Obergefell, this is three years before Obergefell—so, the Supreme Court decides the Windsor case in which the Defense of Marriage Act, which was a federal statute that defined marriage as between one man and one woman, it was invalidated by the Supreme Court under some form of equal protection, and or equal dignity rationale. And so that was a big victory on the way to fully full recognition of same sex marriage at the level of the state, which would come later in Obergefell. But when I read the decision in Windsor, written by Justice Kennedy, I noticed that the language in which Justice Kennedy articulates the right to marry uses language of humiliation and wounded beings—basically, the gist of it being you know, we have been humiliating all these same sex couples and their children, they’re suffering for so many years by their denial of marriage. And so now that some states had decided to recognize their marriages—New York State by that point included—which was the subject of that litigation, we cannot take away that right granted by the state. So, the federal government cannot take away that right. And it cannot take away that right not because they're necessarily entitled to it. But because it is so wounding to take away the right, that was already granted. And the language of dignity was prevalent, it appeared maybe 13, something somewhere between 13 and 20 times in the decision, the idea that we're taking away dignity, by taking away the right to marriage that was conferred by the state. So, I read that decision as a very sad decision because it portrays the subjects of the right in this case, same sex couples and their children, as people who have been wounded and suffering, instead of as people who have had families that are happy and lively as my family was, and many friends that I knew and appreciated.
AK: Tell us more about your next project, I hear that you've got a book project in the works.
NBA: So, I have this new project that I'm really excited about. It's a book called Secular Christian Social Justice and it looks at these three social justice domains: race, gender and climate. And goes through themes, five main themes that when put together, we can say has Christian ethics or morality or affect to it. This book will also talk about repentance and redemption narratives and ideas about material inequality. So, it's a project that tries to put together what I see as the main components of social justice movements today, at least those three, and to give them a context of how they relate to Judeo-Christian thought.
AK: I'm bookmarking that one because that is, that's a hefty topic, but I am encouraged that someone with your lens is taking that on. And thank you so much for taking time today to talk to us about the themes in your article and your time I'm with the 1L perspectives course recently. We really appreciate your virtual visit and spending time with us today. Thank you so much.
NBA: Thank you it's been a pleasure I really appreciate this
AK: Professor Noa Ben-Asher has taught gender, sexuality and the law; torts; and family law at Pace University in New York since 2009.
