Ideal Victims and the Damage of a Damage Free Victory

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Posted in: Injury Law

After writing on Omar Khadr’s torture settlement, I’ve been wondering when the pursuit of monetary damages taints the public perception of those claimants that ask for them. For instance, in Omar Khadr’s case, the payment of the settlement increased rather than decreased the public’s belief that Khadr was still radicalized. Relatedly, while many Canadians opposed the settlement, most favored the government acknowledgement of wrong-doing and apology while they simultaneously disfavored the large payout. In some ways, this backlash is understandable. Having previously confessed to carrying arms and battling the United States as a member of al-Qaeda, Omar Khadr is far from what sociologist Nils Christie would term an ideal victim. For Christie, ideal victims possess six attributes: (1) they are weak in relation to the offender—often some combination of female, disabled, and very young or very old; (2) they are acting virtuously or at least going about legitimate, everyday business; (3) they are blameless in regard to the crime; and (4) they do not know the person who has committed the crime; (5) the perpetrator is unambiguously big and bad; and (6) the “victim has the right combination of power, influence or sympathy to successfully elicit victim status without threatening (and thus risking opposition from) strong countervailing vested interests.”

I argued in my earlier piece that Trudeau’s rhetoric regarding the settlement mattered as he emphasized that no one deserved to be tortured and the state needed to do better in regards to all potential future victims, ideal or not. This concern about the perceived worthiness of the victim leads me to the question of the post—what is the relationship between renouncing monetary compensation for physical abuse and the perception of a claimant as an ideal victim?

A Mini-Trend Toward Renouncing Monetary Relief for Physical Abuse

As the cases of individual monetary relief for physical abuse under international law are pretty rare (I discuss two examples here and here), I look at this question in the domestic setting instead. I’ve noticed a mini-trend of high-profile sexual assault victims declining to seek or renouncing financial gain as part of their related legal actions. For instance, Taylor Swift only asked for one dollar in her countersuit against David Mueller alleging his sexual assault on her during a meet and greet. Rather than seek compensatory or punitive damages, she instead sought purely symbolic damages and pledged to provide her own money as financial support for other victims of sexual harassment and assault. Relatedly, in his opening statement, Swift’s lawyer argued, “She’s not trying to bankrupt this man. . . She’s just trying to tell people out there that you can say no when someone puts their hand on you. Grabbing a woman’s rear end is an assault, and it’s always wrong. Any woman—rich, poor, famous, or not—is entitled to have that not happen.”

Consider too Amber Heard’s well documented allegations of domestic abuse against now ex-husband Johnny Depp. Rather than pursue tort litigation, Heard leveraged the abuse claims and the ensuing restraining order for a $7 million divorce settlement, all of which she promptly committed to charities including those with “a particular focus to stop violence against women.” She stated, “As described in the restraining order and divorce settlement, money played no role for me personally and never has, except to the extent that I could donate it to charity and, in doing so, hopefully help those less able to defend themselves.” Most recently, model Elsie Hewitt filed a lawsuit against ex-boyfriend and movie star Ryan Phillippe alleging he kicked, punched, and threw her down the stairs. Her lawyer told media publications that Elsie wished to take a stand against domestic violence and indicated that “She’s not going to take a dime, I am not making a dime, [if she wins the case] the money is going to a domestic violence charity.”

Contrast these aspirational statements with Page Six’s depiction of Andrea Constad’s use of her settlement money from a civil case with Bill Cosby, describing her as “settl[ing] right into a ritzy Toronto condo after coming to terms with the comedian” and that she “got enough money from the funnyman to score a posh apartment.” Constad’s willingness to take a settlement is used as evidence that she was engaged in a shakedown of an innocent Bill Cosby. This sentiment is consistent with many members of the public who believe that Cosby accusers and others who seek remuneration for sexual violence are simply gold diggers.

Of course, victims of sexual and other violence have the right to control their cases and deserve to be accorded the agency to decide the purpose and strategy of their legal actions and even whether to pursue litigation at all. I am not suggesting that victims must come forward, must pursue claims, and must seek money for themselves. The economic and emotional costs of coming forward are often high, and Ms. Swift, Ms. Heald, and Ms. Hewitt deserve praise for their willingness to shine a light on their sexual and physical assaults and their efforts to assist other victims through their own examples. Rather, I want push back on the way in which lauding the economic selflessness of these female assault victims obscures the important role of compensatory and punitive damages.

To Seek Compensation Should Not Minimize Victimhood

I hypothesize that the perceived need to conform as much as possible to the ideal victim stereotype in order to win the sympathy of the jury and the public may help explain why these high-profile victims did not pursue damages for themselves. Ms. Swift, Ms. Hewitt, and Ms. Heald might be physically weaker than their aggressors, but they are neither very young, nor very old. Ms. Hewitt and Ms. Heald were both in intimate relationships with their aggressors who are popular public figures. Many characterized Ms. Heald as a gold digger who married and then attempted to divorce Johnny Depp for his money. A source close to Ryan Phillippe alleged that Ms. Hewitt is tryingto seek revenge and fame by sending glamour shots of herself to media outlets with a false story of domestic violence.” Ms. Swift suffered from likeability and credibility problems with potential jurors after a high-profile feud with Kanye West over whether she accurately characterized their interactions. Framing their cases as focused on other victims rather than themselves is likely a savvy way of enhancing their virtue to potential juries and the court of public opinion.

But take for example, a New York Times op-ed extolling Swift’s example stating, “Taylor Swift’s court win may have yielded only a single dollar, but to prove this point was invaluable.” It is indeed significant that high-profile victims are willing to publicly speak out against assault using their own experiences, but I am concerned that sentiments like the one voiced in the New York Times subtly reinforce to victims that they ought not pursue their self interest in damages so as to better satisfy the ideal victim category for the jury or the public at large. Look, for example, at Swift’s attorney’s closing statement in which he opines, “By returning a verdict on Ms. Swift’s counterclaim for a single symbolic dollar, the value of which is immeasurable to all women in this situation. . . You will tell every woman . . . that no means no.” But does such a statement also convey that a guilty verdict is not merely immeasurable, but also sufficient? Does it create the impression that those who seek monetary damages for themselves are not acting in the collective interest?

In other words, I think these high-profile cases are a missed opportunity to tackle not only the stereotypes and misperceptions about how victims respond in the moment to a harassing act and why they may continue a relationship with an abuser, but also an opportunity to reaffirm the self-worth of the individual victim. No doubt there will be other high-profile victims. Along with the contributions they might make simply through their willingness to speak out and to fight against stereotypes of how victims respond to violence and their aggressor, they might also be well positioned to challenge the taint of monetary damages and the stereotype of the gold digger. Rather than emphasize their selflessness, they might make public statements that they pursued damages for themselves because they wished to be made whole, because each victim, no matter how rich or how poor, deserves to be made whole under the law. They could emphasize their attempts to make physical abuse expensive for their alleged abusers and that all abusers should face the financial sting of their actions regardless of the wealth of their victims. Similarly, they could publicly recount the need for and costs of counseling and other medical support, costs they can afford to bear, but ought to be borne by their abusers. But rather than put the onus on public victims, media coverage and legal commenters bear significant responsibility in glorifying the self-sacrifice of high profile victims. The legal system provides victims of physical assaults monetary damages for important reasons and for many victims, those damages might be just as important as the judicial acknowledgement of wrong-doing by the defendant.

  • motorcity555

    I have to admit to not having the longest attention span to reading articles with so much depth and persuassion. However as I perused this article I acquired a great deal of appreciation of what the author set out to discuss; with cudos to her for do so and bringing a great deal of enlightenment to me.