Get Your Smart On
A response to Gurwinder's Why Empathy Makes Us Cruel & Irrational
In "Why Empathy Makes Us Cruel & Irrational," author characterizes empathy as an emotionally transmitted disease, a virus, and as a parasite. He claims that empathy debilitates thought, makes us gullible, and equates it to weakness and stupidity. Moreover, he suggests that empathy makes us biased and dishonest; even spiteful, cruel, sadistic, and unjust.
Gurwinder also associates empathy with women throughout this piece. He claims (1) that women are the majority of those who, having empathized with murderers, signed a petition to free the Menendez brothers, as well as Steven Avery. (2) He disses the first set of lawyers representing the Menendez brothers (women) as creative, and (3) as deploying an new kind of self-defense defense that, further, (4) relies on bad-empathy and psychological theories that he characterizes as "abuse-related pseudoscience." He seems to want to discredit the entire field of psychology when he argues that (5) psychology is increasingly dominated by women, and has therefore become "matriarchal"1 and steeped in this negatively characterized empathy. He claims that (6) gender played a role in the hung decisions of the juries in the first trial, arguing that female jurors’s bad-empathy led them to side with the murderers. Gurwinder reinforces this claim by (7) citing mock trial studies that suggest women are more empathetic jurors because, according to Gurwinder, they lend "greater weight to the expressed emotions and personal testimony of the alleged victims." Finally, (8) he takes it to weird-city by linking empathy to spite, and then even to sadism.
We have our work cut out for us. I don't necessarily have the time to make this pretty, and arguably wouldn't want to do so anyways, so I will take it point by point. If you don’t know the basics of the Menendez brothers’ case, an easy primer is linked here to get you up to speed.
"Over 400,000 people – mostly women – have now signed a petition to free the brothers, arguing they’re victims whose claims of sexual abuse were not taken seriously in the 1990s."
Later, a similar claim:
"A petition to release Avery was signed by over half a million people – again, mostly women – despite the significant evidence against him."
The hyperlink applied to the text in both quotes "mostly women" leads to the petition on Change.org and does not provide evidence to support the claim that it was mostly women who signed it. I looked for additional information to verify this assertion but was unable to find anything to support this claim. I did find out that Change.org does not publicly provide a gendered breakdown of petition signatories, making it impossible to confirm this claim through their platform or this link.
"Given that Lyle and Erik didn’t have the facts on their side, their lawyers had to get creative. Abramson and Lansing tried to portray the brothers as sweet and naïve kids. They dressed them in boyish clothes."
The phrase "had to get creative" in this context implies a negative judgment, suggesting dishonesty, deception, or manipulation rather than resourcefulness. (Say what you will about these lawyers, the jury was hung in the end and their clients were not convicted.) This shifts the critique away from the strength of the evidence itself, to an attack on the character and methods of the lawyers, potentially amounting to an ad hominem attack — a rhetorical tactic where one criticizes a person's character, motives, or actions instead of addressing the substance of their argument or position. This treatment continues in points 3, 4, and 7 below.
"The facts of the case are well-established: the brothers initially blamed the murders on the mob, but Erik later confessed to his therapist, Dr. Jerome Oziel, that he and Lyle were responsible. Erik claimed they killed their father, José, because he was domineering, and their mother, Kitty, because she was hopelessly depressed. Neither Lyle nor Erik mentioned sexual abuse to Oziel. Nor did they mention it to their first lawyers, Gerard Chaleff and Robert Shapiro. Their abuse claims only emerged after they met Erik’s second lawyer, Leslie Abramson, several months later.
Abramson had recently helped 17 year-old Arnel Salvatierra avoid a murder conviction for killing his father. She’d done this with a new kind of legal defense; portraying Salvatierra as a victim of abuse by his father. Evidently, she believed this approach could also work for Lyle and Erik."
The decision to engage Abramson may have been influenced by the type of defense the brothers intended to mount, with Abramson’s previous success using this strategy making her a logical choice. However, the phrasing here suggests the defense strategy was shaped to suit Abramson rather than the other way around, inverting cause and effect.
Also, characterizing this defense as "a new kind of legal defense" is misleading. It was, in fact, so well established that it had a name: battered wife syndrome. The first major case that used this as a legal defense in the United States was the trial of Francine Hughes in 1977, depicted in the well known movie "The Burning Bed" (1984), starring Farrah Fawcett. For reference, the Menendez brothers were first tried in 1991.
Francine Hughes, a Michigan resident, was charged with the murder of her abusive husband, James Hughes. After suffering years of severe domestic abuse, she set fire to the bed where he was sleeping, leading to his death. She was acquitted of the murder charge. Francine Hughes’ legal team argued that her actions were a response to a prolonged pattern of abuse, a concept later known as "battered woman syndrome." This defense reframed self-defense as not only applicable to a single moment of danger but also to situations where ongoing abuse creates a continuous threat to the victim’s life and safety. The only thing that is relatively new about this, in the case of the Menendez brothers, is its being applied to the abuse of male victims.
By and by, that the Menendez brothers did not disclose to the male psychiatrist or male lawyers is not particularly surprising, and in no way invalidates the subsequent self-defense case. Male sexual abuse and the underreporting of rape by males are significant issues, though less publicly acknowledged than cases involving female victims. Societal stigma, confusion about sexual orientation, and fear of not being believed contribute to this underreporting.2
"To sell the brothers as abuse victims who feared for their lives, Abramson and Lansing turned to the wealth of abuse-related pseudoscience in the field of psychology. For instance, they used a vague checklist of sexual abuse symptoms developed by therapist E. Sue Blume, an advocate of the pseudoscientific idea of repressed memories, which in the eighties and nineties led to many people being jailed for sexual abuse they didn’t commit." (My emphasis)
Repressed memory theories were indeed controversial in the 1980s and 1990s, contributing to high-profile debates and some legal cases involving claims of repressed and recovered memories. While theories of repressed memories are controversial, to say that E. Sue Bloom's checklist led to innocent people being jailed is an over-reach. Is there a case where someone was convicted on the basis of uncorroborated memories of abuse, or where Bloom's list played some significant role, and where the convict was later found to be innocent? Gurwinder's claim is pretty strong, and this is the sort of evidence that would be needed to make it good.3
"To understand how culture has changed, we need to look again at the gender difference in empathy. This difference doesn’t just affect the verdicts of juries. It likely also impacts the entire field of psychology, which in the 20th century was dominated by men, but in the 21st has increasingly become dominated by women. Between 2011 and 2021 the share of registered female psychologists in the US increased from 61% to 69%, and in the UK, women now make up over three-quarters of all registered psychologists. This demographic shift has been accompanied by a shift in the way psychology is conducted, from the old masculine approach of objectifying humans as specimens to be studied with cold and often cruel detachment, to a more feminine, empathic approach that centers the feelings and lived experience of those under examination, even if this conflicts with objective reality." (My emphasis)
The argument here is that more women entering the field as practicing psychologist has changed not only the culture of the discipline, but its practices. The U.S. data that he cites does show that 61% of active psychologists identified as female in 2011, and in 2020 (when the data ends) it is 69%. But also, in 2013, just two years after 2011, it is at 68%. So the impression we are given of a ever increasing number of women entering the field isn't quite right. It would be more correct to say that the numbers of women active as psychologists fluctuates between 61% and 69% in those years. We might counter that practicing psychologists are a small fraction of the field, that would also include psychiatrists and academic research psychologists, for example. The latter are the ones that do the research and are in charge of knowledge production. Likely their numbers would be more relevant here?
Increased numbers of women in a field do not necessarily result in "a shift in the way psychology is conducted" from more "masculine" to more "feminine." The study or data that would be relevant here is data showing that how psychology is practiced has changed in those years, accompanying an increases in women's numbers.
Of course, the real kicker is this fragment: "even if this conflicts with objective reality." An empathetic approach that favors feelings and lived experience conflicts with reality. What reality is it that we are talking about here, that is not grounded in experience, and that is set apart from feelings? The appeal to a masculinist objective reality — masculinist because “objective reality” is here opposed to subjective, feelings, imagination and creativity, and delusions that are clearly being characterized as female — is outdated. If you have never encountered this before, I recommend you start with Genevieve Lloyd’s Man of Reason: Male and “Female” in Western Philosophy.4
"Back then, just as now, their claims proved more persuasive to women than men; Erik’s trial resulted in a hung jury, with all six of the male jurors pressing for a murder conviction, and all six female jurors pressing for a lesser conviction due to accepting the brothers’ claims of abuse."
In the first trial, the brothers were tried together but with separate juries. The juror math on this is murky, since Lyle Menendez's jury consisted of seven men and five women, while Erik Menendez's jury comprised eight men and four women. The confusion seems to stem from Juror Hazel Thornton, who served on Erik Menendez's jury, and described the deliberations as a "battle of the sexes," with male jurors favoring murder convictions and female jurors advocating for manslaughter.
In fact, juror votes are confidential. There are consistent reports from jurors and trial observers that suggest a significant gender-based division, but there isn't evidence that it was exactly a 50-50 vote. Lyle's jury had 7 men, and Erik's had eight men, so even in the cumulative, the math isn't mathing. A 50-50 vote split on gender would be a 15-9 vote, or 7-5 and 8-4 respectively (not 6-6). But let's say the vote was generally along gender lines, even if not exactly. Then what?
The claim is that the votes were split along gender lines "due to accepting the brothers’ claims of abuse." Again, juror votes are confidential, and deliberations are private, so there really isn't a way to know this. To support this claim, the piece now moves to a set of studies of mock sexual abuse trials:
"A substantial number of studies have found that in mock sexual abuse trials, female jurors tend to be significantly more empathetic toward the alleged victims, lending greater weight to the expressed emotions and personal testimony of the alleged victims when deciding on the verdict."
These studies do find that women ("females" is not a preferred term here, since it reduces our identity to a biological category) are more empathetic towards victims of abuse, but it's not because they lend greater weight to emotions, or "personal" testimony of "alleged" victims in their decisions. Rather, this heightened empathy can be attributed to women perceiving child sexual abuse as more harmful and common than men do, being less likely to blame the victim, and being less likely to believe that children have fantasies about sex. I might retort that it is a failure of masculinity that men are not capable of more empathy in these cases.
Let's also touch on the use of "personal testimony" and "alleged victim" in the above quote. Testimony can be personal, expert, or character testimony. Personal testimony involves sharing one's own experiences or eyewitness accounts, which are inherently personal as they reflect the individual's direct interactions or observations. But I suspect that the use of the term "personal" is here meant to signal something more like subjective, as opposed to objective and true. Nonetheless, even subjective personal accounts have a role to play in the carriage of justice.
The term "alleged" usually attaches to the accused party or their crime, as in "alleged perpetrator" or so-an-so allegedly accused of the crime. But here "alleged" is attached to a "victim." What is the implication of "alleged victim"? It implies that we should withhold judgement as to whether the victim's claims are true, and even that we should be suspicious of these claims. This framing can subtly shift the focus from assessing the alleged perpetrator's actions to casting doubt on the victim's credibility and experiences, potentially contributing to a climate of victim blaming.
"Empathy produces fiction in the mind because it’s ultimately a form of imagination."
This next part is really curious, and moves very quickly. The argument seems to run across several claims: that empathy is a form of imagination (with the implication being that it is not based in reality, something he does state outright elsewhere) where we see another as being like ourselves, and because of this:
i. Empathy promotes "blank-slatism", the idea that "criminals are not born but made, therefore criminals are victims and require understanding, not condemnation." Also here he makes a pretty bold claim: "Since we have intrinsic natures, our minds are more alien to each other than we might assume." This gives away one of his main assumptions: that by nature we are different, not only in our bodies (the usual seat of sex difference) but also in our minds. Accordingly, criminals have criminal minds. They don't become criminals through their actions, being caught, tried, and found guilty, but are by nature so. I wonder if he also believes that sex differences are "in the mind," such that women are more feeble-minded and gullible. His account overall does seem to imply this. In any case, his view is that criminals are born, not made, and are not like "us" non-criminals. Under this view, the objective reality is the Menendez brothers were born liars and murderers, and empathy for them and their case is a the very least "inacurate" because it's not grounded in objective reality (e.g., "This makes empathy an inaccurate way to understand the behavior of others." ), or even pathological. We'll get to that below.
ii. "If we identify too strongly with someone, our emotional connection to them can cause us to behave like their lawyers, engaging in mental gymnastics to defend our idealized image of them." Ergo, empathy is in the realm of the emotions, and leads us to imagine things that are not true (according to an objective reality).
iii. This one is fun:
"Empathy-driven spite can also be commonly seen in the real world, such as in the recent case of UnitedHealthcare CEO Brian Thompson, whose murder was widely celebrated on social media due to his company’s apparent history of denying health insurance claims. In such** **cases those who empathize with one side’s pain often wish to inflict even greater pain on the other. One might even say empathy is a major cause of sadism in the world."
This is where I wrote in my notes: "I'm a little speechless at this point." Thinking this back through to its assumptions, what must be the case for this to be true? Having empathy for one "side" means having the opposite feeling for the "other side." Maybe empathy is imagined here as a zero sum game, what empathy you give to one side is detracted from the other side?
The opposite of empathy is not spite or spitefulness but often considered to be apathy or indifference.5 While empathy involves understanding and sharing the feelings of others, apathy represents a lack of interest or concern for those feelings. In some contexts, particularly psychological or emotional ones, a lack of empathy might also be described as detachment, callousness, or insensitivity.
At worst, a lack of empathy is indifference; something more needs to be added to get us to spite. It is yet another leap to get us to sadism, and all I want to say about this is that studies in psychology and criminology suggest that men are more frequently diagnosed or identified with traits associated with sadism.6 If women are more empathetic, and empathy leads to sadism, you would expect more women (than men) to be sadist or to exhibit sadist traits.
iv. "But empathy doesn’t just make people spiteful, it also makes them unjust. ... Their empathy overruled their principles." The studies cited earlier talk about "empathy induction" in juries, and shows that jurors asked to empathize with the person on trial will respond to this appeal, so that makes sense. However, it is not clear how empathy is against the interests of justice. Juries are there to be arbiters not only of facts, but of all the evidence. factual and otherwise. A case may include mitigating factors either way — favoring the defendant or, as the case of aggravated murder, to their detriment.
Gurwinder's line of reasoning brings to mind the work of Carol Gilligan in In A Different Voice that gave rise to feminist care ethics. Carol Gilligan's work as a psychologist focuses on gathering data about women's moral reasoning, which she found to be distinct from the findings of Lawrence Kohlberg, whose studies only included male subjects. Gilligan found that females tend to make moral decisions based on concrete situations, emphasizing care for others and the preservation of relationships, whereas males typically decide based on rule-following and justice, often abstracting from the specific details of the situation. Her work challenged Kohlberg’s view that women were less morally developed because they did not reason using abstract principles of justice, arguing instead that women operated from a different, equally valid moral orientation, one that values relationships and care.7
We could argue, with Gilligan, that women are more empathetic, but disagree that this makes them weak, less rational, principled and not moral, but I don't think we want to make that argument because it reinforces a gender binary that harms all. I think that both women and men are capable of empathy, as much as both are capable of rationality. We recognize that men have, over the ages, projected emotion, immanent, subjectivity, weakness, onto femininity as a way of propping up masculine rationality, transcendence, objectivity, and strength. It has little, in fact to do with us women and our actual lived experiences. It is bad for us all that men are discouraged from developing their emotional intelligence.
As history has taught us, being logical and reason-bound is not necessarily the most persuasive approach, and I am afraid that this piece could do harm by appealing to people's misogyny. To be clear, I am not invested in the Menendez brothers case and leave their fate to the appropriate processes. But I do care how these cases that have captured people's attention can be weaponized. And I am concerned that women are being painted as more empathetic and characterized as more emotional and less rational, as feeble-minded, gullible, and less able to spot emotional manipulation, and as spiteful and even prone to sadism. The pathologizing of femininity alongside empathy can do real world harm to women, as well as to those deserving of our empathy.
Moreover, this tells men that to be empathetic is weak and all the bad things, and that in being empathetic they are acting like women, one of the worst things a man can be accused of being like. At this point we should be asking, in whose interest is it to convince men (but also women, although this is not about women themselves, and on this view they can't help themselves anyways) that being empathetic is womanly weak and bad? Who is Gurwinder's intended audience?
Why, in this political moment, are we seeing disparaging accounts empathy? There appears to be something in the air…. Who’s afraid of empathy?
In the last paragraphs of this essay, Gurwinder smears attorney General for Los Angeles county George Gascón with his shit-empathy. Of the 57 paragraphs in this piece, the last 8 are devoted to Gascón — that is about 14% of content by paragraph, and more than any other person other than the Menendez brothers themselves. He also mentions Gascón in the second paragraph where he is identified as the "high profile figures like George Gascón, who, as District Attorney of Los Angeles County, recommended Lyle and Erik be resentenced and released." ( Make that 15% of content by paragraph.) However, Gascón's recommendation was based not only on new evidence of sexual abuse, but also the age of the brothers at the time that they committed the crime, and their demonstration of personal growth and efforts toward redemption while behind bars.
Seeing as the piece is sandwiched by the figure of Gascón, could it be that this whole .... shebang has been a way to criticize or undermine Gascón as soft on crime and criminals? Gurwinder portrays Gascón as a symbol of the dangers of unchecked empathy in the criminal justice system. His actions, driven by a belief in "blank-slatism" and a misplaced sense of empathy, are presented as leading to a failure of justice and a significant increase in crime. (What up L.A., how are your windows doing these days?) And could that have been the point in all this? What does the person self-described here have to do with the Los Angeles District Attorney’s recommendation on a decades-old case, in a country where he, Gurwinder, doesn't even reside?
That is very weird, don’t you think?
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