So, this is a copy of the paper I gave at the AWGSA conference just a couple of weeks ago. It’s not spectacular – it was primarily written late at night and early that morning, due to a somewhat ridiculous schedule – but I’m hoping it will give a sense of where, at least, I’m starting out in thinking about law and therapeutic forgetting. I didn’t get into much theory, really, because this was really a sketch of a research area, rather than a fully rigorous paper. Bah, caveating aside, here’s the goods:

Medical innovation is something that we are all becoming, more and less, accustomed to dealing with. Whilst the effects of such technologies for the individual–not only straightforward safety, but the risks of potential side-effects and pharmaceutical interactions, for example–are considered a key part of the research required in advance of permitting sale of a product, or allowing a surgical technique to become standard procedure, the effects which extend beyond the individual concerned remain, for the most part, irrelevant. Bioethics, for example, which one would be forgiven for assuming considers the ethics of medical and biological research, turns out to be primarily concerned with enumerating the rights and responsibilities of the liberal humanist individual in relation to medicine. But as scholars such as Margrit Shildrick have pointed out, such bioethical analyses tend to presume the very subject that these medical and pharmaceutical developments query, or change, or throw into question. Obviously, however, it is not only bioethics that presumes a liberal, humanist subject, the conception of which is shaped by a history of the subordination of women, by colonisation and racism, by rampant and continuing ableism and eugenics, and by class asymmetries. This subject lies at the heart of numerous social and political institutions; of central concern today is our legal system.

If we turn to John Stuart Mill’s On Liberty, we can see the central ideals of liberalism which are so key to understanding such institutions, perhaps summed up as follows:

‘The only freedom which deserve the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.’

The deprivation of freedom has been configured as a ‘harm.’ At least theoretically, then, according to liberalism, whenever harm occurs, some kind of intervention is warranted. This is thought to be the place for the law, and, perhaps more importantly, the justification of it: it is meant to intervene where someone transgresses on another’s capacity to be free, to ensure that justice is done, say through prevention, compensation, punishment and/or deterrence. Yet, of course, what counts as harm has never been entirely clarified, even though there are many liberal philosophers who have attempted to describe it. I would add that the selectivity of what counts as harm is one of the key ways in which the white, straight masculinity of the liberal humanist subject is both privileged and protected. That is, only certain forms of harm are subject to legislation or court decisions.

The very use of the word ‘harm’ in liberalism is, I think, telling: where we could use words like ‘suffering’ or ‘hurt’, we use ‘harm’, an apparently objectively given standard. And this objectively given standard is adjudicated, often, by law, before which we are all, allegedly, equal… or perhaps ‘the same’ is a better description. Thus, looking closely at what the legal system protects helps us to understand what kind of a subject the law seeks to protect, or more specifically, what vulnerabilities the law assumes its subjects have, that must be protected to ensure that justice is done, helps us to understand how and why social asymmetries are reiterated through law. As Moira Gatens points out, the legal system is produced to protect those whose bodies match the body politic, whilst laws relevant to minorities such as women are fragments, set around the edges. This discussion might seem a little distant from medical innovation, but the key point is that our legal systems function with a particular model of subjectivity in mind. Whilst that subject may have always been something of a fantasy, nonetheless the issue of what happens when contemporary subjects change through medical intervention requires some analysis. The question I am interested in asking, then, is how medicine and law intersect in the context of existing oppressions and social assymetries, given first that they tend to bow to each other’s expertise, and second that they share a mutually reinforcing conception of the subject. In this particular case, I want to talk about therapeutic forgetting, or, as it is also known, memory dampening.

The pharmaceutical at the heart of this set of questions is a beta-blocker, one of a set of drugs which help to stop the visible manifestation of anxiety. They are mostly used by performers, to keep them from perspiring excessively, and to steady their hands. Propranolol, however, has been discovered to have another, rather astonishing effect: if taken in the immediate aftermath of a traumatic event, it can, it would seem, reduce the ‘traumatic weight’ of the memory of the event. This practice is called ‘therapeutic forgetting’ or ‘memory dampening’, and although it isn’t yet a common part of the treatment of trauma, it seems likely that, if the initial tests go forward into proper clinical trials, it could become part of the toolkit used to negotiate with trauma, alongside, say, anti-depressants, counselling, anti-anxiety medications and debriefing. There are many questions still outstanding about the use of propranolol in the prevention of trauma–for example, it’s not clear from the tests which have taken place so far whether the reduction of trauma also affects the clarity of the memory of the events– but in the end, the promise of being able to contain trauma to the immediate aftermath of an event, rather than something that takes months, years, perhaps decades to deal with, is probably going to be too sweet a possibility to refuse.

What does it mean, to be able to reduce the traumatic significance of a memory? Those closely involved in its testing see only what they call a positive outcome: the prevention of PTSD. Yet our memories are not simply the ‘content’ added to the ‘container’ of who we are: they are part of us; in fact, there are those who suggest that we are nothing more than the narrativisation of our memories, that our subjectivity is shaped that profoundly by our experiences. In terms of traumatic memory, it is not only the memory of the traumatic event that reshapes a subject, but the memory of the memory, the practices of remembering that develop over time, as we ‘deal with’ or ‘fail to deal with’ whatever trauma we have experienced.

The memory of rape can and often is, precisely that significant in someone’s life, a memory that for a long time can produce suffering, in the recollection of suffering. Suffering is, obviously, understood as a prima facie bad thing, claims about post-traumatic growth notwithstanding. On the one hand, this might mean that we cheerfully hand over propranolol to all those who might be traumatised, as medicine would seem to recommend. And it is incredibly difficult to imagine how it could be ethical to refuse a rape survivor access to a drug that might reduce her suffering, a suffering which is part of the reiteration of women’s oppression, a suffering which, lest it need to be repeated, she did not deserve, or earn.* Surely the relief or reduction of suffering can only be an ethical aim?

On the other hand, what effect might this have on the law? If law is shaped, ideally, by the trauma experienced by liberal individuals, then what happens to legal understandings of crimes when trauma is reduced? If a woman is raped, for example, and takes propranolol, thereby reducing the longevity of her trauma, or the ‘traumatic weight’ of her memories, does that reduce the significance of the crime? Or, more to the point, if propranolol became standard ‘treatment’ for the trauma of rape, might it, over time, reduce or at least reconfigure the significance of rape, not only for the individuals involved–as the drug is intended to do–but for the legal system and for society more generally? And would this be a bad thing, in any simple sense?

For the individual concerned, perhaps not. But if this pharmaceutical reduction in trauma became that widely used, which would seem quite likely if the adoption of, for example, anti-depressants is any indicator, what happens to the individual woman who might choose to not take propranolol after someone rapes her? Our society has a plethora of discursive techniques for holding women responsible for rape–from having had sex once, to wearing skinny jeans, to getting drunk–and in this context, it seems likely that such a discursive construction would shape social responses to the use of propranolol. For a woman to choose to not take propranolol in the aftermath of rape thus risks becomes freighted with the language of responsibility for trauma. What precisely might it mean to ‘choose your own trauma’ in this way?

Preventing ‘bad’ experiences from shaping who we are–perhaps this is a simple straightforward good thing. We often assume it is. But it also places us in the position of making decisions about who we want to be. Obviously we already make these negotiations, but the question of whether we, both individually and as a society, have the wherewithal to make more and more and more decisions about who we want to be, remains a live one. The alleged equation of more choice = more freedom has clearly been a seductive one, but there are increasing numbers of questions being asked about whether those choices are liberating, or risk becoming another facet of oppression or even trauma. For rape survivors, the effects of propranolol in terms of the pathologisation of bad memories and the potential to erase trauma have just this potential.

Similarly, some commentators such as Bell, Chatterjee and Lindberg and Siao,  have pointed out that propranolol risks pathologising bad memories; making memories that are difficult appear as disease, in the limited lexicon of medical science. It is a well-established problem for medical innovation that having the capacity to ‘treat’ something situates that ‘something’ as pathological. Memories of rape are already socially coded as sites of shame, partly because they tap back into existing and conservative ideas about gender dynamics which render women allegedly ‘unrapeable’. To expand this investment in memories of rape into the pathological would seem to add a problematic discursive weight to the aftermath of rape, making negotiating the entire experience far more complicated. I have already suggested that our practices of remembering–how we remember what we do, and how those rememberings reshape the memory itself–are particularly at stake here, and it seems that propranolol may produce a peculiar new way of remembering memories, one which risks carrying the extra weight of pathologisation. The effect of propranolol on our socially shared styles of memory and remembering, then, bears with it the potential to undo its own positive effects. Between the question of who becomes responsible for the trauma arising from rape when ‘she could have just taken a pill’, and the issue of further stigmatisation of rape survivors and rape memories through the pathologisation of such memories, this drug, which has so much potential, may simply become another complicated and contradictory space that a rape survivor must negotiate.

It also opens up the question of the significance of the memory of rape beyond the individual. Contemporary Western culture is extremely good at erasing the memory of rape from public knowledge. Whether the erasure takes place when survivors are shamed into silence, or when police officers refuse to take reports, when physical examinations are not done, or are inconclusive, or when prosecutors decide a case is too hard to win, or when judges lead or affirm juries in thinking that rape is not rape because of drunkenness or skinny jeans or whatever, the point is that rape is too easily rendered solely a private matter. A memory delimited to a single embodied subject. One of the only spaces for publicly marking and remembering the trauma of rape is the legal system, and the effect of propranolol on this role is thus a key part of the questions I want to ask. Reducing the trauma of rape could either reduce or increase the number of rape survivors prepared to testify: perhaps, with the reduction of the trauma attached to the memory, testifying in court might become a less re-traumatising experience and thus become a process that survivors are more willing to go through; or again, reducing the trauma may mean that whatever psychological ‘closure’ is offered by testifying, and the promise of conviction, becomes an unnecessary part of negotiating with trauma. Both possibilities are fairly damning about the contemporary system of justice, however, suggesting that the contemporary legal system is inadequate to deal with the trauma of rape, and that the liberal promise of this institution is never fully borne out. More than this, they require that harm, suffering and trauma be experienced somewhere, and by someone, before intervention of any kind if warranted. Someone needs to be traumatised in order for the legal system to step in.

This is why, I would suggest, that the philosopher of ethics, Emmanuel Levinas, is so damning of the question of justice. He argues that ethics–our responsibility to an other who is always unknowable and unknown–must be acknowledged as coming ‘before’ justice. Ethics is about responding to the suffering of the unique other before me, whilst justice always sets the ethical demands of two others in competition with each other, even as their demands are incomprable. For Levinas, any attempt to talk about the ‘positive outcomes’ of suffering is intensely unethical, and in fact winds up being a justification of the unjustifiable, a defense of the indefensible, a form of what he calls secular theodicy. In these discourses, he includes three claims that are raised in the literature about therapeutic forgetting: first, the claim that suffering is character-building, or second, that it is a natural part of life, or third, that it acts as an indicator for society about where injustice is occurring. He argues that this turns suffering, which is fundamentally useless, fundamentally meaningless, into something that is useful, and in so doing establishes grounds upon which suffering becomes justified. Justifying suffering seeks to delimit that which cannot be ethically constrained: our infinite responsibility to the other.

It is worth attending to where and how these examples of ‘secular theodicy’ occur. Problematically, of course, this is precisely how liberalism works. Liberalism can only respond to injustices such as rape. Harm, trauma or suffering must occur first, must indicate where society has ‘gone wrong’. Suffering must occur first before the correction to social structures is even perceived as necessary. Someone must bear the physical and traumatic memory of injustice before justice may–and it may not!–be done. This style of justice is, according to Levinas, profoundly unethical, yet it is predominantly minorities of various kinds whose vulnerabilities become the site at which these issues with liberalism’s ethical inadequacy is played out.

Therapeutic forgetting, then, is not simply about forgetting harm, suffering, or trauma, about the individual’s experiences of these. Rather, in dampening trauma, it functions to forget this inadequacy, to forget the injustice of a liberalism that claims to protect freedoms from harm. It functions to obscure that liberalism cannot deal with ‘vulnerable others’. In a system of law and politics that is clearly so troublingly unresponsive to the vulnerabilities of its subjects, then, medicine is offering a stop-gap, a means of reducing those vulnerabilities, or rather, a means of producing ideal subjects whose vulnerabilities to trauma lie only in those spaces that liberalism protects. In this context, the question of whether a rape survivor is actually the subject of therapeutic forgetting or not, remains a live question. If, as I suggested at the beginning, medical innovation is transforming embodied subjects as we know them, the question I want to ask is what is it turning them into, and why? Medicine might seek to prevent suffering, but it does so by transforming the other into something less vulnerable, something more isomorphic, as Moira Gatens suggested, with the body politic. In this sense, medical innovation needs to be carefully analysed, perhaps especially where it reduces suffering, because it can too easily forget that suffering is not a naturally occurring experience, but the result of a very particular social and cultural context; and because that forgetting is often weighted with the forgetting of difference.

* I refer to ‘women’ throughout not because I think that men are not raped, because they are, though at far, far lesser rates than women, but because I go on to discuss the specificities attached to women-as-survivors-of-rape, particularly the discourses used to discredit them.