Testimonial Injustice: The Prevailing Injustices Faced by the Victims of The Mother and Baby Homes

In February of 2015, the Commission of Investigation (Mother and Baby Homes and certain related Matters) Order 2015 was passed through the Oireachtas. [1] This established, under the Commissions of Investigation Act 2004,[2]an investigation into and the commencement of a report on the Mother and Baby Homes in Ireland.[3] Five years after the report commenced and decades after many victims had begun their quest for answers, the findings of the report were released.[4] Prior to having received access, victims first read of its contents on the front page of the Sunday Independent Newspaper.[5] This disregard for those who should have been central to the process was both a reflection of how they had been treated and a foreshadowing of how they were to be treated. 

This article endeavours to discuss the subconscious biases of the Commission which led to conclusions that undermined the reliability of the victim’s testimonies. Comments reflecting this can be found throughout the report, but  the contents of this article will focus on the Executive Summary and the Recommendation sections. To understand why these subconscious biases exist, the concept of testimonial injustice developed by Miranda Fricker will be discussed including the role of identity power and prejudice. The role of testimonial injustice cannot be examined in relation to the Mother and Baby Homes without acknowledging the prevalence of gender-specific incidences. To examine the effect of this concept on women, the importance of stereotypes will be discussed.

The effect that stereotypes of women have on testimonial injustice

Testimonial injustice, a form of epistemic injustice, occurs “when prejudice causes a hearer to give a deflated level of credibility to a speakers word.”[6] Fricker states that testimonial injustice is when someone is “wronged specifically in their capacity as a knower”[7]  which is significant as “to be wronged in one’s capacity as a knower is to be wronged in a capacity essential to human value.”[8] The systematic testimonial injustice that occurred in the Commission Report was “connected via a common prejudice to other injustices” that the victims suffered due to their identity.[9] Many of those who gave testimonies to the Commission were women and unmarried mothers. 

In their work, Yarbrough and Bennett highlight the danger of stereotypes as it is often negative ones which are adopted and promoted over positive ones.[10] Among many stereotypes, women are viewed as insane, hysterical, and weak.[11] Carol Gilligan notes that the female voice is seldom recognised as rational and often as morally immature.[12]Stereotypes of women being emotional and dramatic have a significant effect on the credibility they receive. This is evident from an action brought by Philomena Lee and Mary Harney who despite being identifiable in the Final Report, were not provided with the relevant extracts of the draft report nor given the opportunity to make submissions before the Report was finalised as is required by sections 34 and 35 of the Commission of Investigation Act 2004.[13]  One of the grounds the action was brought on was that the report includes a footnote implying that elements of Mary Harney’s statement have been contaminated by a work of creative writing - therefore the stereotype of women being dramatic has deflated her credibility.  

This case also includes several more examples of testimonial injustice such as the omittance of evidence which creates an inaccurate representation of her and her mother’s experience, incorrect evidence being published, and the appearance that her account is inconsistent and unreliable due to its incompleteness.[14] The Commission accepted that women were required to work but that this “was generally work which they would have had to do if they were living at home.”[15] This further incriminates her account as lacking credibility as it is unlikely that cutting the grass with a scissors could be described as a task which would have been done at home.

“There is no evidence…” The inconsistencies between victim’s testimonies and the Commission Report

The Commission found “no evidence that women were forced to enter mother and baby homes by the church or State authorities.”[16] This finding can be rebutted with reference to the women referred to as Pregnant from Ireland (PFIs) who fled to England.[17] The report states that significant pressure was put on the Irish Government by British Catholic charities to repatriate pregnant women and that these women suffered “inhumane” treatment.[18] Regarding the State authorities, the Commission admits that the Department of Health and local authorities “appear to have co-operated with these practices.”[19]

Furthermore, the Commission found that despite “some of this cohort of women” stating in their testimonies that they had their babies taken without their consent, under fake names and with uninformed consent,[20] “with the exception of a small number of legal cases, there is no evidence that this was their view at the time of the adoption.”[21] This opinion was reiterated when stated that it had found “very little evidence that children were forcibly taken from their mothers” and that even in cases where mothers did not have much choice, this is not the same as ‘forced’ adoption.[22] This contradicts G v An Bord Uchtála which constituted that “a consent motivated by fear, stress, or anxiety ... does not constitute a valid consent.”[23] All of the discrepancies above indicate that the Commission does not consider the testimonies of “this cohort” as evidence.

Conclusion

In conclusion, women who took part in the Commission Report were victims of testimonial injustice. Furthermore, the factors which led to the women’s incarceration were the same factors that led to their testimonial injustice. Despite major differences between Irish society today and when the Institutions were at their ‘busiest,’ it is harrowing to see such similarities in how the victims were treated. By undermining victim’s statements, the Commission re-established feelings of exclusion, inadequacy, and shame instilled in them by the Church and the State. 

MacKinnon hypothesizes that there are three mechanisms of power to keep women in place; avoidance of accountability, aspiration of riskless-ness and the assumption of mortality.[24] If the investigation which was established to provide closure and answers for the victims and their families leaves them more hurt and excluded than before, this must be questioned, addressed, and prevented from reoccurring. 

By avoiding accountability and undermining the testimonies of those who were abused, a culture of silencing victims is not only actively preserved but also encouraged. The State must acknowledge that by doubting the women who painfully shared the stories that they were forced to suppress for so long, patriarchal societal structures are being upheld and are preventing society from progressing. If such misogynistic behaviour is defended and continued, the wounds of victims will never heal, and new wounds will be inflicted on both them and on future victims of the patriarchy in this country. The women who testified for this report are not immortal. Steps must be taken not just to hear what the victims have to say but to listen to what they are saying and to put what they want into action. It is accepted that what happened in the past cannot be undone so what matters now is what is done before it becomes too late. 

[1] Commission of Investigation (Mother and Baby Homes and certain related Matters) Order 2015 S.I. No. 57/2015 - Commission of Investigation (Mother and Baby Homes and certain related Matters) Order 2015. (irishstatutebook.ie)

[2] Commissions of Investigation Act 2004 Commissions of Investigation Act 2004 (irishstatutebook.ie)

[3] Commission of Investigation into Mother and Baby Homes, Final Report of the Commission of Investigation into Mother and Baby Homes (Department of Children, Equality, Disability, Integration and Youth October 2020) gov.ie - Final Report of the Commission of Investigation into Mother and Baby Homes (www.gov.ie)

[4] Ibid

[5] Press Council of Ireland, “Tuam Mother and Baby Home Alliance and the Sunday Independent” (March 2021) https://www.presscouncil.ie/Decided-by-the-Press-Ombudsman/6602021-tuam-mother-and-baby-home-alliance-and-the-sunday-independent

[6] Miranda Fricker, Epistemic Injustice Power & Ethics of Knowing (Oxford University Press, USA 2007) 21, 33

[7] Ibid, 52

[8] Ibid, 64

[9] Ibid, 59

[10] Marilyn Yarbrough and Crystal Bennett, Cassandra and the Sistahs: The Peculiar Treatment of African American Women in the Myth of Women as Liars (Bluebook 21st edn 2000) 630

[11] Paula Ruth Gilbert, “Discourses of Female Violence and Societal Gender Stereotypes” (2002) 8 Violence Against Women 1271

[12] Carol Gilligan, In A Different Voice: Psychological Theory and Women’s Development (Cambridge, Harvard University Press, 1982)

[13] Philomena Lee and Mary Harney v the Minister of Children, Equality, Disability, Integration and Youth (HC, November 2021)

[14] Ibid

[15] Recommendations of the Final Report of the Commission of Investigation into Mother and Baby Homes 2021 8 para 30 gov.ie - Recommendations of the Final Report of the Commission of Investigation into Mother and Baby Homes (www.gov.ie)

[16] Executive summary of the Final Report of the Commission of Investigation into Mother and Baby Homes January 2021 1, 3 para 8 gov.ie - Executive summary of the Final Report of the Commission of Investigation into Mother and Baby Homes (www.gov.ie)

[17] Ibid, 14 para 45

[18] Ibid

[19] Ibid

[20] n3, 88

[21] n15, 72 para 254

[22] n14, 9 para 34

[23] G v An Bord Uchtála [1980] IR 32

[24] Catharine A. MacKinnon, “Graduation Address: Yale Law School, June 1989” (1989) 2 Yale Journal of Law and Feminism 299, 301