Discursive silence as a global response to sexual violence: from title IX to truth commissions

A pattern of personal and political silence in response to sexual violence is evident across societies, despite significant cultural, political, and social differences. Drawing on Foucault’s concept of discourse as a tool that can shed light on the hidden workings of historically contingent social systems that produce forms of knowledge and meaning, we argue that the logics that are built into laws governing national responses to sexual violence draw attention to the ways that these logics structure social relations between sexual violence survivors and society, masking some experiences and bringing others to light. Following Marianne Constable’s analysis of silence and the limits and possibilities of modern law, the manuscript explores the ways in which strategies of silence in the face of sexual violence might lead to novel approaches for pursuing justice for survivors outside of positivist legal frameworks. We also draw on critical feminist perspectives directing legal scholars to pay careful attention to non-legal discourses in developing analyses and responses to sexual violence. The manuscript develops its central arguments through an examination of two dramatically different cases: (a) Title IX as a mechanism for responding to sexual violence on college campuses in the United States; and (b) the South African Truth and Reconciliation Commission’s efforts to pursue transitional justice vis-à-vis gender and sexual violence in post-apartheid South Africa.