This is a post by Margherita Grassi (University of Barcelona) and Eleonora Volta (Vita-Salute San Raffaele University).
Article 111 of the Italian Constitution establishes that every trial must be conducted before a third and impartial judge and under conditions of equality between the parties. That means the judge must sentence based on the law, considering the facts and evidence presented during the trial, and without letting any opinion or prejudice about the parties influence their judgment.
In cases of gender-based violence, however, this required impartiality sometimes fails to be put into practice. A notable Italian case is a judgment by the Court of Appeal of Florence (no. 58/2015) where six defendants were fully acquitted of group sexual assault charges because “the fact did not occur”.
This case gained significant attention in 2021 when the European Court of Human Rights condemned Italy (J.L. c. Italy) for the numerous statements in the motivation of the acquittal that were vehicles of victim-blaming, moralising and sexist stereotypes. In fact, the sentence’s text includes many passages that discredit the complainant without justification. The narrative is mainly built in two ways. If the court focuses on the complainant, her behaviour and past are put under scrutiny. In contrast, when the court focuses on the defendants, it generally considers them to be more objective and, by framing the events from their standpoint, their actions are viewed more sympathetically. Why do these narratives surface in contexts where impartiality should be a guiding principle? One way to explore this question is by analysing the specific interpretative resources that lead to overshadowing the complainants’ perspective.
To shed light on the tendency to privilege the perspective of the subject accused of sexual violence, Australian philosopher Kate Manne (2018, 2020) coined the term “himpathy”. She defined it as the excessive sympathy sometimes shown towards men who perpetrate gender-based violence. According to Manne, this phenomenon is closely tied to misogyny – as they are two sides of the same coin. To support the patriarchal order, misogyny aims at “bringing women down” by reinforcing their behaviour through punishments (and rewards).
For example, by discrediting and obscuring the viewpoint of the wronged party, as exposed by “J.L. c. Italy”. On the other hand, himpathy works by defending men and protecting their reputations when they face accusations from individuals in a subordinate social position. For example, it is unfortunately common to describe incidents of rape or femicide by emphasising the past suffering of the perpetrator (suggesting that he acted out of provocation, rejection or desperation) or by stressing what he has to endure after the allegation has been filed (loss of reputation and imprisonment). These are the effects of himpathy, while its scope is to distort the perception of male violence by imaginatively transforming it into “understandable acts of passion” provoked by women.
In her analysis, Manne focuses on cases drawn from public discourse, particularly examples from US news reports. Instead, in a recently published article, we decided to look inside Italian courtrooms to see if and how this phenomenon works there. In our first example – the case from the Court of Appeal of Florence (no. 858/2015) – a pattern corresponding to himpathy appears in the text of the sentence. In several passages, the court adopts the perspective of the accused, discusses their actions with a non-objective degree of leniency and, in the end, acquits them even on the basis of biased arguments. Here, the sympathy Manne describes subtly manifests by permeating the adjectives and language the court adopts. In the acquittal, for instance, the harassment is referred to as “sexual advances” and the atmosphere surrounding the event is depicted as euphoric and cheerful. In these contexts, himpathy seems to involve more than the emotional investment mentioned by Manne. This is because the language used in the Italian court’s decision consistently indicates that the judges have adopted the viewpoint of the defendants, ignoring not only the complainant’s experience but also the possibility of describing the events neutrally and impartially. Instead, this way of describing the event is not present in the European Court of Human Rights resolution (J.L. c. Italy), showing how it is possible to operate differently. We suggest that by looking at language use in the courtroom and studying how himpathy affects the interpretation and application of legal norms during trials, we can better explore the hermeneutical dimension of the phenomenon, i.e., its impact on the ability to understand, interpret and express certain social experiences.
The imaginative work that himpathy involves appears linked to a biased social imaginary full of distorting concepts that prevent the proper recognition of perspectives other than the dominant ones. To illuminate the hermeneutical dimension of the phenomenon, we refer, among others, to the work of the philosopher José Medina (2013). He has investigated “meta-insensitivity”, a type of ignorance that hinders our ability to recognise when we interpret information based on conceptual distortions. Medina describes meta-insensitivity as the difficulty that socially privileged subjects typically have in identifying the limits of their knowledge. This means that they not only ignore important aspects of the social world they ought to know about, but also arrogantly assume that there is nothing to understand beyond the perspective they are adopting, which is often the dominant one. While Medina discusses the systematic invisibility of marginalised perspectives, our focus is on how the perspectives of privileged individuals – specifically men – are uncritically assumed to be objective in legal proceedings.
When we look at himpathy through this lens, we can see that the excessive sympathy shown towards men who abuse women emerges from ignoring – often without being aware of it –marginalised groups when interpreting and understanding their experiences. Marginalised voices are systematically not considered, unjustly excluding them from engaging in the creation of resources to explain their social experiences. This significantly impacts the response to gender-based crimes and leads to the male perspective being often perceived as an impartial point of view. More specifically, in the cases analysed, the result is that the perpetrator’s perspective is sympathetically adopted as more understandable, credible and authoritative than that of the target. Through this analysis, we aim to show why himpathy can be seen as a phenomenon in which epistemic and emotional dysfunctions are deeply intertwined. On a practical level, we try to shed light on one of the mechanisms that can lead the judicial mind to be biased towards individuals and arguments, and what this implies on an epistemic, legal and social level. When judges groundlessly prioritise men’s experiences over marginalised ones, thus ignoring and distorting their perspective, they act in contrast to the principle of impartiality they are required to uphold.
To read more about this, check out our article, “Controlling the Narrative: The Epistemology of Himpathy in Sexual Assault Trials” which appears in no. 27/2024 of Phenomenology and Mind. The article is freely accessible following the link to the journal issue.
Margherita Grassi is a PhD Student at the University of Barcelona and a BIAP Predoctoral Fellow (Ref: CEX2021-001169-M). Her research interests encompass feminist analytic philosophy, philosophy of mind, conceptual engineering, and social ontology. In her doctoral project, she is analysing the concept of misogyny, focusing on how misogynistic social meanings and practices impact people’s minds and social interactions in everyday reality.
Eleonora Volta is a Postdoctoral Researcher at Vita-Salute San Raffaele University in Milan (Italy). Her investigation lies at the intersection of feminist philosophy, philosophy of language and social epistemology. Her work is devoted to the analysis of how rape myths and sexist stereotypes may affect legal reasoning in gender-based violence crime trials.
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