Over the weekend, I posted a piece called “retracting my statement,” about a conversation in which I confirmed a (then) boyfriend’s view of sexual politics. At the time of the conversation, I was not yet ready to face the damage done to me by a sexual assault, let alone start picking the shrapnel out of my heart. I wanted to prove to myself that I could hold my own with an older man – that I wasn’t the kid he thought me to be, practically a niece in terms of age difference. And perhaps most telling – or damning: I wanted to impress him as an avant-garde thinker, an artist who pushed boundaries like he did, like the artists he admired.
None of this was clear to me then. None of this was conscious or deliberate. It was not until years later that I would come to terms with what I said, or the implications of how my words could be used – not so much against me personally, but rather, in the court of public discourse: in support of a dangerous, even predatory aesthetic.
I imagine the cubes of resin drying on one of his work benches with little paper insects trapped inside. There is no going back. My words are preserved forever, simply by having spoken them. And the truth is, so are his.
Which leads me to further questions about the privilege that writers – especially nonfiction writers – possess: their unchecked power to put testimony out into the public discourse. What obligation do we have to the “witnesses” providing “testimony” in our writing? How do we treat them while they are on the stand? How do we interrogate them beforehand? How do we decide which testimony to use, and which is suspect – not only in the sense of its truthfulness, but also, its soundness? How do we spot testimony that is subject to later retraction? How do we know when we are abusing our privilege and power?
This cuts a little deeper than the usual questions about changing people’s names to protect their privacy. It means something more than common sense, too, which after all is a slippery concept, subjective at best and prejudiced at worst.
Police interrogators might rely on multiple sessions, sniffing out inconsistencies in order to uncover lies or misrepresentations. This, however, provides a poor gauge of the truth, let alone personal truths. But there is something to the idea of asking questions more than once – of doing the work to uncover something below the surface.
I don’t mean that we should literally “interrogate” the people in our lives, but rather, that we should remain mindful of how people’s memories and feelings change over time – even from second to second, or mood to mood. We should remember that the subjects of our essays and memoirs are as psychologically complex as we are, and not necessarily clear in their intent. Intent, then, becomes something to question while writing – something that should never be taken or given at face value.
In criminal law, intent is known as mens rea (literally, “guilty mind”) and must come together with an action (actus reus) in order to be defined as a “crime.” This is why we have varying degrees of murder; each one represents a different kind of intent (with negligence and recklessness also defined as forms of intent; hence, charges like negligent homicide & manslaughter).
Intent is not the same thing as motivation. One might be motivated by desperate poverty to rob a convenience store, but that is not an element of the crime. The intention must be to deprive someone of property (or however any particular statute defines mens rea), and this intention must intersect with the act of carrying out the robbery.
Given that intent is a mental state, it is never easy to identify or infer. One might argue an insanity defense, in which a particular mental state made one unaware of right or wrong, or created an irresistible impulse to act – both of which would remove the element of intent. Given my history and my mental state at the time of my statement to my former boyfriend, some form of insanity defense might fit for my story, although I have serious doubts about that idea.
There is also the question of how long it takes to formulate intent. Some criminal cases have hinged on whether a gun required a shooter to release the safety or load bullets. Inherent in either action was a point at which the shooter could change his mind, and this provided some evidence of the formulation of intent. Intent, then, can be formulated in an instant – even second by second.
I find a certain elegance in the idea of intent coming together with act. In writing, we recognize this asobjective correlative: an event (or object) corresponding to some inward emotional or psychological state. In an adversarial writing process, we can begin to question “objective correlatives,” wondering if we have them wrong.
Finally, it is important to remember the context in which “testimony” is given. I like to look to a Supreme Court decision for guidance, in which the court ruled that crime-scene witness statements need to be divided into two categories: those given “under the duress of an emergency”; and those given in a clear context of evidence gathering, when no emergency is present (Anonymous, 2006, p. 5). As might be expected, statements under “duress” are not admissible as testimony; those given deliberately in order to “establish a fact” are another matter entirely and may be used in court (Anonymous, 2006, p. 5). Here again, we see an attempt to “play fair” by defining clear “rules of evidence.”
We might think of charged, emotional moments in our lives as “crime scenes,” and any statements given as potentially “under duress.”
The lesson here is simple: We must pay close enough attention to the people we write about to recognize these shades of gray. We must cultivate the compassion and empathy to consider the kind of duress under which they speak. And we must be willing to poke holes in our own cases if that is what it takes to get to the “truth.”
References
Anonymous. (2006, June). Crime Scene Comment Is Testimony Evidence. Juvenile Justice Digest, 34(12), 5.
