The science of victim-blaming and how attorneys can fight back
Last month a former Stanford University swimmer Brock Turner was given a light jail sentence for sexual assault of an unconscious woman.
A couple weeks ago, two black men – Alton Sterling and Philando Castile– were fatally shot by police, the first while immobilized and the second during a traffic stop.
In these cases as in many before them, commentators jumped eagerly into their favorite mental gymnastic sport: victim-blaming. What was she thinking, drinking so much at a frat party? Why wasn’t he more compliant and respectful to the police? Was she wearing something revealing? Were his pants sagging?
In cases of rape and police brutality, survivors and their advocates are calling out victim blaming. Organized groups are getting vocal about the trend, and pushing back against pundits and personalities who immediately scrutinize the behavior of the one most screwed over in an interaction.
And this push-back is good news for plaintiff-side law. Because research is showing that the qualities held by victim-blamers run deep. This isn’t just a belief in certain specific markers of ‘respectability politics’ or quaint notions about how real ladies should dress. Racism and misogyny are powerfully at play in these responses– but they’re tied to a mindset that is also more likely to side against victims in all kinds of scenarios.
Judges and jury-members might believe, deep down, that anyone biking or driving a motorcycle is essentially asking to be run over by a truck; anyone represented in a medical malpractice suit is selfishly driving up all of our medical bills; or (as we recently highlighted in the coffee-burn case) that any suing party is just a con artist hunting down the next big swindle.
Victim-blaming is alive and well, and it’s going to affect your practice. But new research in social psychology is helping us understand what is happening in the mind of the victim-blamer– and possibly giving us tools to fight back.
What the Science Says: Blame and Binding Values
Some of the earliest research on victim-blaming came from the insightful philosopher and cultural critic Theodor Adorno. In the 40s, the idea of ‘victim precipitation’– that a victim in some way called for their own victimization– was widely accepted. But even then, before the term ‘victim-blaming’ was invented, Adorno wrote that one trait of fascist cultures was showing “contempt for everything discriminated against or weak,” a tendency which he believed was “one of the most sinister features of the Fascist character.”
But new research by social psychologists, parsing out the values and motivations of victim-blamers, shows the behavior runs deeper than political ideology.
This month’s Personality and Social Psychology Bulletin contains research by Laura Niemi and Liane Young, from Harvard University and Boston College, respectively, with a compelling new take on the phenomenon. They conducted four studies, involving nearly 1,000 participants, and concluded that on the broadest level it’s a question of two types of ‘moral values.’
One type focuses on care, universal compassion, and harm-reduction– a set of beliefs called “individualizing values.” People who ascribe to those moral values are more likely to blame perpetrators of crimes and less likely to focus on faults in the victim.
The other type focuses on values like loyalty, purity, and obedience to authority. These are known as ‘binding values,’ and they’re important for keeping groups together. This can be seen in religious taboos about certain foods being unclean– eating pork might, from a detached standpoint, appear no worse than eating any other animal (at least now that we’ve got trichinosis under control); but having a shared dietary restriction defines the edges of your group identity
Binding values can be violated without clear victims – for instance, when someone burns a flag, or in consensual premarital sex. Anthropologists note that binding values are probably necessary for societies to function – but unchecked they can motivate disregard for human rights. (An extreme example is ‘honor killings’ – the murder of someone who violates a behavior code, even if it’s only through having been raped.)
The two sets of values aren’t mutually exclusive – everyone has some level of each. But which side you favor can predict a lot about your response to victims. ‘Individualizers’ are inclined to think that nobody deserves harm, and tend to sympathize with victims. But those who prioritize the ‘binding values’ are more prone to a line of thinking that leads to callousness toward victims who don’t conform to whatever standard of purity or obedience the particular group holds.
In Niemi and Young’s research, people who rated binding values as highly important were more likely to blame victims for the crimes and express relative leniency toward perpetrators, judge victims as contaminated or tainted in some way, point out behaviors the victims could have done to prevent their own victimization, and determine that victims weren’t really injured by the experience.
“In contrast to individualizing values that focus on prohibiting harming victims,” they wrote, “binding values focus on prohibiting behavior that destabilizes groups and relational ties: disloyalty, disobedience to authority, and behavior reflecting spiritual and sexual impurity.”
On the broadest level, the distinction comes down to basic ideas about causality. While individualizers see a clear divide between victim and perpetrator, binders see causality– and therefore culpability– as more distributed among all parties involved in an interaction.
One’s score on this value set was a better predictor for victim-blaming than anything else, including political persuasion. But the researchers do note that people who are politically conservative generally are more likely to endorse binding values than people who are politically liberal. Women were also more likely than men to ascribe to ‘individualizing values’ and to refrain from victim-blaming.
The Cruel Belief in a Just World
Niemi and Young’s research builds off older research on victim-blaming that has uncovered another aspect in the motivation to blame victims: the need to believe that life is fair. The “Belief in a Just World” factor– shortened by social psychologists to BJW– is held by almost everyone, but to varying extents. All of us have some latent belief that if we’re decent people we’ll have a good life– the sense that our behavior will bring a certain outcome gives us a deeply-needed sense of safety.
This emerged in research from 50 years ago. In the 1960s, social psychologist Melvin Lerner conducted a famous series of studies on the psychological response to victims. When participants were forced to watch another person receiving electric shocks, without the ability to intervene, many of them started to believe the victims deserved the punishment. The more unfair and severe the suffering seemed, the fiercer the denigration.
Lerner saw his work as growing out of Stanley Milgram’s ground-breaking research on obedience. His big questions were: how do systems that cause cruelty and suffering maintain popular support, and how do people come to accept social norms and laws that produce misery and suffering?
Lerner noted that when something bad happens to a good person, it rips away our safety-blanket. The random nature of misfortune and injury is terrifying. So instead of admitting its randomness, we sometimes try to create a new calculus for it, stifling our natural sympathy and instead offering up justifications (a phenomenon mocked in the recent faux-news article titled: “Devastating: This Guy Knows Exactly How Black People Should Act Around Police Officers, But He Has No Black Friends To tell About It.”)
As long as we can believe ‘what goes around comes around’ and ‘you reap what you sow,’ we can retain a comforting sense of control over our lives. Or as Lerner puts it:
“if people did not believe they could get what they want and avoid what they abhor by performing certain appropriate acts, they would be virtually incapacitated. It seems obvious that most people cannot afford, for the sake of their own sanity, to believe in a world governed by a schedule of random reinforcements. To maintain the belief that there is an appropriate fit between effort and outcome, the person must construe this as a relatively ‘objective’ belief– one that applies to everyone [. . .]. If this is true, then the person who sees suffering or misfortune will be motivated to believe that the unfortunate victim in some sense merited his fate.”
These tendencies run deep, and can even be a requirement for mental health. Belief in a just world is sometimes understood as a ‘positive illusion,’ bringing greater life satisfaction and well-being, and reducing the chances of depression.
“The thought that we live in a world which is unjust, unfair, and at times unsafe is understandably too much to bear at times, and if we can find a way to deny vulnerability in order to feel safe, it seems we will, even if it means pointing the finger and putting blinders on.”
Don’t Look Behind You . . .
Other research on the question of victim blaming points to the prevalence of the “hindsight phenomenon.” Once we learn that a motorcyclist has been injured, we create a deterministic narrative whereby their injury was inevitable. And once that’s the case, we hold the motorcyclist responsible for not being able to predict their own injury– forgetting that millions of people in this world drive around motorcycles without being hit by a car.
On the level of entire populations, note researchers, this can look like curmudgeons asking why Jews didn’t leave Germany before the full rise of concentration camps, ignoring the fact that decisions are made in the relative ignorance of foresight instead of the certainty of hindsight. Psychologists call this logical fallacy “creeping determinism.”
Recent research supports this view in finding that victim-blaming stems from “the human tendency to overestimate oneself.” People think that if they were consistently harassed in the workplace, they’d stand up to the bully boss; if they were driving in that time and place they could have swerved to avoid the oncoming car; and they never would have used that shady-looking consumer product in the first place, even before its shocking defects came to light.
Pushing Back in Plaintiff-side Law
Victim blaming in the courtroom comes in many flavors.
There’s the one where defense attorneys hire a doctor who can swear that your client’s injuries suffered are caused by a preexisting condition, and the incident at hand has nothing to do with it. Or they’ll milk that time-gap between the incident and your client’s search for medical treatment, even though many of us wait a while in the hope that we’ll heal on our own, rather than hurrying to a doctor when we’re injured (especially when money’s an issue, and really– when isn’t money an issue?).
Or there’s the tactic to hunt down some defect in the plaintiff’s behavior, even if evidence shows that these actions didn’t matter. This attempt was momentarily on display two years ago, after a Walmart truck crashed into a limo van and broke comedian Tracy Morgan’s ribs, nose, and leg, injured two others, and killed fellow comedian James McNair. When it came to light that the driver of the truck had been working long shifts, remaining awake for more than 24 hours at the time of the accident, Morgan sued Walmart for criminal negligence. Before settling the case, Walmart retorted that Morgan’s injuries “were caused, in whole or in part, by plaintiff’s failure to properly wear and appropriate available seatbelt restraint device.”
Of course, opposing parties will mine a plaintiff’s personal information for even less relevant details, all in the attempt to convince a judge or jury to blame the victim.
How can attorneys protect their clients against victim-blaming tactics?
First, recognize that the opposing counsel is likely to be looking for jury members who will blame the plaintiff for anything bad that befell them. Your responsibility to your client requires you to be vigilant against these attempts. The new research offers you an additional tool in determining potential opinions within your jury pool, even when they won’t admit outright to the believe of victim precipitation. As Niemi and Young conclude:
“Put plainly, the results suggest that knowing a person’s stances on disloyalty, disobedience, and impurity may afford a prediction of that person’s perception of victims as responsible and blameworthy.”
Secondly, in your oral and written arguments, fight back against ‘creeping determinism,’ telling the story of the event in a way that clarifies the plaintiff was operating without benefit of hindsight. Any language that points to experiences likely shared by your audience could also help erode victim-blaming.
Niemi and Young also found that a sentence’s syntax could guide people in placing blame. It can be as simple as the subject and predicate of your sentences. Saying “Mr. X hit my client” will direct focus on the actions of the defendant, while the passive sentence “My client was hit by Mr. X” will stir up more victim-blaming, as the audience focuses on the actions of your client.
Use active rather than passive sentences when talking about the injury done to the plaintiff. It not only creates stronger sentences and tighter writing– it hits our brains differently.
“These findings suggest that subtle alterations in the language used to describe moral transgressions have the potential to modulate moral judgment via causal representations,” write Niemi and Young. But their findings go even further. They note: “It may be surprising that focus on the victims did not increase sympathy for victims. Instead, our findings suggest that a more effective strategy for addressing victim blaming would involve increased focus on the perpetrator.”
In a New York Times article about their study, Niemi and Young explain: “For those looking to increase sympathy for victims, a practical first step may be to change how we talk: Focusing less on victims and more on perpetrators– ‘Why did he think he had license to rape?’ rather than ‘Imagine what she must be going through’– may be a more effective way of serving justice.”
Much work to counter victim-blaming has focused more attention on the victim, believing if we can only more fully ‘humanize’ the person who was hurt in this altercation, full empathy will kick in. Niemi and Young’s work suggest that this tactic has its limits: talking about the victim often serves only to bring more scrutiny and fault-finding down on them. Rather, consistently direct attention back to the behavior of the defendant, which caused the problem for which you’re seeking redress.
In her novel The Handmaid’s Tale, Margaret Atwood presents a dystopian future where victims are routinely criminalized:
“Two-thirty comes during Testifying. It’s Janine, telling about how she was gang-raped at fourteen and had an abortion. But whose fault was it? Aunt Helena says, holding up one plump finger. Her fault, her fault, her fault. We change in unison. Who led them on? She did. She did. She did. Why did God allow such a terrible thing to happen? Teach her a lesson. Teach her a lesson. Teach her a lesson.”
Keeping victim-blaming in the realm of speculative fiction, rather than permeating our every-day mindset, is a formidable task. But it’s one that will benefit both victims and the attorneys who fight for them.