Ex favula oritur ius

There are no facts, only… evidence!

Many elements contribute to the workings of the epistemic engine of the trial. Here we do not intend to wade bluntly into the question of whether the trial should paranoically pursue the 'true' truth or should content itself with a more modest procedural truth: no metaphors will be used, such as that of the harmonious squaring of the circle or the asymptotic nature of the tangent. The question remains in the background, while the dramas that will unfold on the proscenium will allow us to make out a few of its significant features.
Cases of violence (sexual or 'domestic') against women or minors are like volcanoes for the underground activity of the magma of justice: in them a series of evidentiary and judgmental problems converge, lifting the veil of Maya on the chemistry of the search for truth in the laboratory of the trial.
The biblical story of Susanna literally blows the trial apart under the effect of a prophetic grenade fallen from on high: only the external intervention of the young Daniel, inspired directly by God, makes it possible to reach the truth. The story of Artemisia shows an opposite method: to pile evidence upon evidence. The role of the magnificent painter is fundamental, yet not decisive: what counts is the number of witnesses. The story of Adela Quested in Forster's A Passage to India, though it closes with the salvation of the innocent, has as its sole protagonist the presumed victim, who in the end turns out to have been the victim only of her own suggestion.
Through the narrative and symbolic mesh of these three 'tales' emerge reflections on the role of the epistemic attitude with which one approaches an object such as testimony, expecting it to contain a truth.

Susanna and the Elders: the truth… at the right moment

The scene of Susanna and the Elders takes place in the thirteenth chapter of the Book of Daniel. The fundamental motif is that of the divine protection of the persecuted (today we would say: from the powers that be or from the justice system). From a narratological point of view, Daniel is a hero who gathers within himself the traits of wisdom and justice. Susanna, for her part, is the one who prefers to expose herself to a trial whose outcome is almost certainly disastrous rather than come to terms with her tormentors (today we would say: rather than plea-bargain!).
It should be noted how rich the account is in details relating to the 'crime scene': everything is spelled out to show how each fact can be used against Susanna: the closed doors, the maidservants sent out of the garden, the absence of third-party witnesses. The deceivers have thus arranged an evidentiary picture ready to pass 'into the trial file'. But above all, however implausible their account may appear, no one will dare to cast doubt on their credibility. Here the magnificent Canticle of Susanna comes in, a shining example of a literary topos that leads all the way to Lucia held captive by the Unnamed. We are, so to speak, on the threshold of the Council Chamber; the bowls of the trial have come to rest; there is nothing, within the fateful 'meshes of the law', that could overturn the situation. Only a rupture of the (human) justice system can put the wagon of social control back onto the rails of its proper destination (i.e. of truth): 'the Lord stirred up the holy spirit of a young boy, named Daniel…'.
And here is the out-of-true mechanism that shakes a procedure powerless to discover the truth: instead of passively listening to their depositions and taking them as pure gold, the young boy suggests: 'Separate them well from one another and I will judge them'. It is an application of game theory (the celebrated prisoner's dilemma) more than twenty centuries ahead of Nash!
The story at this point is well known: Daniel asks, first one and then the other, under which tree the misdeed took place. The first answers 'under a mastic tree', the second 'under a holm oak'. 'By their own mouths Daniel had made them confess to having borne false witness'.
What one may ask is: would blind cross-examination be possible today? And if possible, would it really be desirable? It has been said that Solomon could rise to the archetype of the wise judge with his little 'trick' only because there was no written law that he had to apply, being free instead to conduct the proceedings as he pleased (or because in those days there were no DNA tests!). So it is with Daniel, who is invested with 'special powers' by the people-as-judge once the suspicion of deciding wrongly creeps in, in the form of reasonable doubt.

The trial (ad) Artemisia Gentileschi: an anachronistic rape

Let us leap more than fifteen centuries. The Tassi – Gentileschi case caused a sensation in papal Rome. The culprit had refused the expected reparation (marriage to save honour), just as, in the trial of the 1960s over the violence suffered by Franca Viola, it was the refusal of the courageous Sicilian woman that fostered a process of consciousness-raising which would lead to the reform of family law. From the trial records (which really do read like the rough draft of a script for a staged performance) we learn that at the time of the events Artemisia was fifteen and Agostino Tassi about thirty-two.
The trial lifted the tombstone of the whitewashed sepulchre constituted by Tassi's questionable personal situation. After the Gentileschi affaire, Tassi went on accumulating trials and acts of violence: his record (had there been one) would have included, among other things, incest, sodomy, thefts, debts and even murder. Tuzia (the lady companion), for her part, testified evasively and with a certain ambiguity, since – given her position as chaperon – a direct responsibility (and not by mere complicity) would have fallen upon her for having failed to watch over Artemisia's virtue.
Artemisia was first subjected to what today we would call a technical test: a sort of expert examination bearing on the deflowering that had taken place. Two midwives carried out a gynaecological examination and confirmed it. But Agostino Tassi's true act of involuntary self-accusation was his unshakeable denial of any sexual relations with the victim.
Elizabeth Cohen invites us to reread the account of the rape as history, scraping away all the anachronisms of the case. The dramatic tone and the rich, polished language of the records conceal the nature of the testimony as a double artefact (on the part of the protagonists; on the part of the organs of justice). The trial is multivocal; it is a weave in which the apparent uniformity of the container (the legal formalities are the same for everyone) leaves intact the differences and peculiarities of the actors. What the witnesses report is not an objective X-ray of the world: rather it is a sketch, according to their rhetorical abilities, of what their interest in the case led them to bring before the judge. To put oneself in the shoes of those who judge means to confront a cacophonous mass of sincere assertions and naive dissimulations, of claimed plausibilities and barefaced lies: the trial was in fact a trial between parties, and all the witnesses took up the position of intervenors ad adiuvandum rather than that of impartial informants about objective circumstances.
In short, we are witnessing a trial that is proper to every witness in every judgment, and particularly to that specific privileged/penalized witness who is the victim of sexual violence: in expressing herself, in search of a reconstruction not only of what happened, Artemisia meets and clashes with the procedural cadences of the law, with the conventionality of forensic rhetoric, with the micro-politics of the administration of justice.

A Passage to India: a ghost witness and the retraction at Chandrapore

A sentence by Forster reads: 'It is the function of the novelist to reveal the riddle of life at its source: to tell us more than could be known. Though the intellect is our best friend, there are regions whither it cannot guide us'. One could perfectly well replace the novelist with the judge or the lawyer engaged in a trial concerning an episode of sexual violence, and the epigram would lose nothing.
Turning therefore directly to the moment when one comes before the judges, the reader is in a sense in the (virgin minded) position of the Court, since he is not permitted to know what really happened in the Marabar Caves.
The court of Chandrapore is one of the essential settings of the book. The principal actors appear on the scene, and among them the prosecution stands out. The cut-rate epistemology underlying the Public Prosecutor's opening statement betrays, in reality, an absolute absence of strategy, owing precisely to the naivety of believing that truth, in order to be such, must also be self-persuasive, and therefore unworthy of any further effort to be proven.
Both the prosecution and the defence had always known that one decisive piece of evidence, the testimony of Mrs. Moore, could by itself tip the scales of justice (which is why Mrs. Moore was made to leave by a stratagem on the part of the Prosecution). The dialogue at this point grows tighter. The climactic scene can finally take place.

'I fear I have made a mistake':

'What sort of mistake?'.

'In truth Dr. Aziz never followed me into the cave'. (…)

'Do you withdraw the charge? Answer me' cried the presiding judge.

Whatever enters into the judgment, what the truth is can be known only at the outcome of (and thanks to) the judgment itself.
There is one thing this immense novel still teaches us today: if it were ever correct to say that truth is the opposite of mystery (memorable are the words of the opening night-time dialogue in the mosque between Aziz and Mrs Moore), one would have to admit that it is nonetheless not entirely foreign to it. The last element of the ideal triad that marks the rhythm of the novel (Mosque, Caves, Temple) describes, through the image of the Hindu festival, this disorderly commingling, and should therefore be a warning to all those who, among jurists, appoint themselves difensores fidei of the trial's presumed truth-bearing dimension: what would be needed, if anything, is to forget a certain 'colonial mania' of ours for details and to acquire the humble capacity to grasp a vaster order.
Now, the accusation, like the event itself (the criminal act), are both entirely elided and eclipsed, that is, indicated by a circumlocution or, more precisely, a periphrasis. There is never any mention of rape, of rapist, of carnal violence, and so on: where the name of the thing ought to be there is a void, that is, the figure of speech. The very grounds of the judgments are a triumph of periphrasis, paraphrase, synecdoche and metonymy: 'Words, words, words,… as if there were anything at all that could be said in words…'. The allusion to this sort of aphonia is not so much a matter of the supernatural (a metaphysical question) as precisely of the metalinguistic: it is about recognizing and respecting that part of the mind which, at times, speaks through some spiritual reverberation, in a kind of 'enchantment of the unknown' (with the not inconsiderable note that in the expression ravishing the unknown the verb ravish can also mean… 'to rape'!).
One could paraphrase a line from A Passage to India (suitably replacing the physical subcontinent 'India' with the theoretical continent of 'truth'): 'How can the mind take in all this country? Generations of invaders have tried, but they remain in exile…'. For the jurist, remaining within the metaphor, these reflections are a warning to remember that the grounds of judgments are only a vague attempt to render intelligible the Truth of the Lebenswelt, which instead inexorably leaves in exile all those who try to colonize it.

The evidence of truth (in court)

Here, then, is the problem common to all three stories: the victim who is also a witness, the sole witness, not only a witness.
Truth is paradoxical, and the compiler of the Book of Daniel seemed to have understood this, just as Artemisia knew it perfectly well in her heart and as Adela Quested realized just in time: the victim is more concerned with survival than with the search for truth in the trial. Even a mere bird's-eye glance at the grounds of judgments in matters of abuse would yield most interesting footholds for understanding not only that reality sometimes surpasses imagination, but also how much that is 'narrative' (and rhetorical) there is in the forensic practice of the concrete case.
We may ask ourselves: what kind of truth do we consider to have been 'discovered' or 'revealed' in our three literary cases? The first is an extra-systemic truth, discovered not logically but pragmatically, through an outright trick. The second is a truth by accumulation, turned on a lathe, chiselled, multilayered: a nuanced truth, in which a myriad of pixels (dozens upon dozens of testimonies) ends up composing the overall figure of the finished picture. The third, finally, is truly a truth granted by the sole direct witness: a negative, original truth, in the sense of an absolute renunciation of any appearance (of any evidence).
In Susanna's case we 'know how things stand', in the sense that it is the narrator himself who tells us: Susanna is innocent. On the basis of this premise we can then judge whether the outcome of the trial corresponds to the truth or not. In Adela Quested's case our stance is almost analogous, though not exactly the same, since the univocity and certainty of that mirroring relationship between the alleged 'fact' and the final truth of the judgment is already loosening. The mirror of nature, in short, already shows some crack of ambiguity, of semantic richness, of linguistic undecidability. In Artemisia's case, finally, and not for nothing is it the only 'true' case (in the sense of 'historical'), we find ourselves instead, albeit ex post, in the same 'virgin' epistemic position as the judge, and are therefore seized by a far greater vertigo: what we can express are only (so to speak) judgments, suppositions, convictions. Reading the papers of the trial 'convinces' us that justice was done or not, according to whether we 'believe' Artemisia or Agostino, Tuzia and Quorli or Stiattesi.
Facts (those very thing-like things that ought to contain within themselves the very datum of being hard, real, existing, unassailable) are no more univocal than opinions. At least not all of them. To give but one example, relational facts, such as carnal intercourse under certain conditions, not only suffer from a certain perspectivism, but are rather constituted – entirely – by the very perspectives of the agents involved: observing two people joining together in particularly agonistic ways in a car parked in a secluded place, the patrolling carabiniere can only believe (not know) that a crime is being committed (just as he can only believe– not know – that nothing of criminal relevance is taking place).
The truth of the trial takes shape within the trial. Evidence, which are the exchangers of the communication processes between two worlds (the real and the procedural), is made of language, that is, of the same matter of which stories are made. To think that truth has other means of access within the trial is as foolish as to believe that the law of the impenetrability of bodies does not exist. However 'bitter' the observation may be, furiously turning and stirring the little spoon of our (at times somewhat paranoid) demands will not dissolve into the judicial coffee a single gram more of the sugar of truth.
There follows a kind of 'autarchy' of truth. Whoever thinks otherwise and takes the trouble to argue it is in fact not alone, nor short of arrows in his quiver. There exists, indeed, a Western current of thought of the first magnitude, according to which reason, language and their relationship with truth are essentially anti-rhetorical. In modern times the tendency to identify truth with evidence (a very… procedural word) has enjoyed great credit. A truth that coincides with evidence needs nothing more than a Cartesian 'attentive mind' capable of grasping it: it is, so to speak, self-persuasive. The fact is that it is propositions that are self-evident, but never arguments. It is a matter of recognizing that language is (never) solely informative (a mere vehicle onto which to load data with a one-way ticket), but always intrinsically persuasive (in that it has at least one inescapable rhetorical aim: to be believed).
Literature creates characters, whereas the law punishes flesh-and-blood people. And judges (and lawyers) are precisely people, with all their limits, not only psychological and idiosyncratic, but also the limits imposed on them by the law and the system.

Emanuele Filograna is a lawyer. He currently works at the Administration of the University of Perugia. A graduate of the Sapienza University of Rome, he obtained the DASA Master's in Administrative Law and Administrative Science at Roma Tre University and a PhD in the Evolution of Legal Systems and New Rights at the University of Salento. He has published case notes and has worked as a commentator for the press. He recently obtained his Master's degree in Philosophy at the University of Perugia.