Trial Magazine

The subtle, rarely overt practice of victim blaming occurs when people reflexively fault the person harmed rather than the person who caused the harm. Jurors who engage in victim blaming may be inclined to absolve the defendant of liability, placing the responsibility on your client instead. Understanding what victim blaming is, why it occurs, and how to refocus attention on the defendant are valuable tools as you prepare for trial.

One theory behind victim blaming is that people want to believe in a fundamentally just world in which they are safe from seemingly random events.¹ The theory suggests that when confronted with an injury, some people cope with the anxiety it provokes by subconsciously shifting responsibility for the harm from the actor who caused it to the injured person who—unlike them—must have deserved it in some way. People are motivated to restore balance to their world. Under this theory, bad things shouldn’t happen to good people, so people “get what they deserve.”²

Similarly, the Jury Bias Model™ identifies this reassignment of blame as “defensive attribution,” a cognitive bias that allows people to believe that ­someone’s actions causally contributed to a bad outcome.³ In this worldview, people suffering from physical illness or disease are presumed to have sustained the harm through their own bad decisions, such as choosing not to seek a second medical opinion. As with the just world model, engaging in this counterfactual thinking enables people to imagine that the harm would never have happened to them. Defensive attribution allows individuals to contour the facts for their own ­self-preservation and safety.

While psychologists have previously studied the impact of the just world and defensive attribution theories on juror decision-making, a recent series of studies regarding victim blaming has investigated what determines whether a person will feel sympathy or scorn for a victim. The research of Dr. Laura Niemi and Dr. Liane Young demonstrates that deeply held moral values play a powerful role in a person’s attitudes toward those harmed.

They found that moral values are more reliably predictive of ­someone’s view of victim blameworthiness than his or her politics, gender, or religious views.⁴ Their research identifies the profound influence innate moral values have on the evaluator and helps to identify when people are more likely to shift blame from the perpetrator to the victim.

Identifying Moral Values

The moral foundations theory developed by psychologist Jonathan Haidt asserts that moral judgments are primarily intuitive and that conscious reasoning serves as a post hoc rationalization to justify a gut decision.⁵ There are five accepted universal moral values:⁶

• care/harm: when and how we feel compassion, caring, and kindness toward others

• fairness/cheating: values regarding justice, rights, and autonomy

• loyalty/betrayal: feelings of attachment, pride, and patriotism in one’s “in group” and fear of any “out group”  authority/subversion: represented by respect, obedience, and deference

• purity/sanctity/degradation: based on disgust toward certain perceived “unclean” objects or acts and offset by virtues of chastity, piety, or temperance.

The first two values are “individualizing values” that support protecting the individual by helping others and prohibiting harm, inequality, or unfairness. The remaining three are “binding values” that promote group cohesion—loyalty, obedience to authority, respect for tradition, and preservation of spiritual and sexual purity.⁷

A juror’s stance on individualizing and particularly on binding values will predict his or her opinion of victims. Individuals who favor binding values are more likely to blame the person harmed, as well as “endorse stigmatizing attitudes toward victims,”⁸ such as rebuffing people with mental health issues.

The more strongly jurors agree with a binding value, the more predictably they will blame a plaintiff and favor a defendant to preserve group cohesion.

Identifying a juror with binding values. Asking scaled questions is key to learning where a person falls on the moral values spectrum and how deeply rooted these values are in potential jurors. Research suggests that the more strongly jurors agree with a binding value, the more predictably they will blame a plaintiff and favor a defendant to preserve group cohesion.⁹

Asking how much someone agrees or disagrees with the following statements (for example, on a scale from one to eight) can help identify his or her personal moral values.¹⁰

Individualizing values:

• One of the worst things a person could do is hurt a defenseless animal. (care/harm)

• When a government makes a law, the number one priority should be that everyone is treated fairly. (fairness/cheating)¹¹

• Friends and family turn to me for warmth and support. (care/harm)

• It is important to care for the needs of others. (care/harm)

Binding values:

• It is more important to be a team player than to express oneself. (loyalty/betrayal)

• If I were an employee and disagreed with my boss, I would still obey his or her directive. (authority/subversion)

• People should not do things that are perceived as disgusting,¹² even if no one is harmed. (purity/sanctity/degradation)

Use caution when questioning potential jurors you believe—based on preliminary questioning or questionnaire answers—are likely to hold strong individualizing values. Their responses may reveal a potentially ­plaintiff-favorable juror to the defense. But asking a potential juror you believe may have strong binding values to give a scaled response to an individualizing value question may yield useful information about the level of that juror’s sensitivity to a victim’s suffering. Learning that a potential juror attaches a high degree of importance to values such as loyalty to the “in group,” obedience and respect for authority, or concern about spiritual and sexual purity suggests that he or she is more likely to perceive your client (the victim) as a destabilizing threat who is ­therefore responsible for the harm suffered. Since people generally tend to endorse individualizing values to a similar degree but vary importantly on binding values, you may choose to measure binding values only, particularly if your voir dire is limited.

Use at Trial

A person’s perception of whether someone is to blame can be influenced by subtle language structure. How you talk about and structure the story affects how blame judgments are made.¹³ Binding values jurors invert the normal causal template (perpetrator harms victim), making the victim the subject of the narrative (victim harmed by perpetrator).

Keeping the spotlight on defendants by making them the subject and using the active voice lessens victim blaming—even by people with strong binding values. Making victims the focal point doesn’t generate sympathy for them, but rather—counterintuitively—may create the perception that they had the capacity to control events to avoid the harm and as a result may be responsible for, if not deserving of, the outcome.¹⁴

Make the defendant the causative agent of the story. Rather than “the patient suffered an overdose of medication,” say “Dr. X overdosed the patient.”¹⁵ Using the active voice makes Dr. X the person whose actions should be scrutinized. Using the passive voice, however, de-emphasizes Dr. X and distances him or her from the harm caused.

Don’t let the defense erase the defendant from the picture. The defendant’s absence from the narrative can confuse jurors about who caused the event, who had control, and who is ultimately at fault. Continually bring the story back to the defendant, and note for the jurors any defense efforts to delete him or her from the storyline.

Use binding values to support your case. After you’ve identified the jurors who may be likely to victim blame, find out which binding values they most strongly endorse—loyalty, authority, or purity—based on the scaled questions you asked. Use “moral reframing” to focus your message to binding values jurors.¹⁶ For example, if respect for authority is an important binding value for them, stress how the defendant violated rules, regulations, or accepted practice or how your client adhered to those values. Describe how the hospital created rules for administering medications to patients (authority) and how staff was required to follow those rules (obedience). Or tell how the doctor put the hospital community at risk by failing to diagnose the infection (harm to the “in group” rather than harm limited to the individual). To persuade jurors of a position, it is helpful to connect that position to their ­underlying moral values.

Use purity rhetoric. While you may think that your case does not involve “moral purity,” research shows that of the five basic moral concerns, purity is the value that unites and divides people.¹⁷ This value is shaped by the psychology of disgust and invokes extremely negative associations and moral judgment. This can be especially problematic in medical negligence cases because they involve things that jurors may naturally recoil from, such as pathogens, bodily fluids, and wounds. Research shows that injured people are sometimes judged as tainted or contaminated, which can lead binding values jurors to view them with disgust, amplifying victim blaming.¹⁸ Binding values jurors may segregate victims into the “out group” to insulate themselves from contamination.

However, purity rhetoric can be used successfully against the defendant. Disgust produces an immediate aversive or withdrawal response,¹⁹ so use language such as “disregard of the rules,” “disgusting behavior,” “dirty working conditions,” or “unclean hands” to stain the defendant.

For trial attorneys, it is worth knowing about the power of moral values on a person’s judgments. The more strongly a juror supports binding values, the more likely that juror is to blame your client and find him or her responsible for the harms suffered. But by using this knowledge, you have the ability to persuade binding values jurors.

Susan Dennehy is the founder of the Dennehy Law Firm in New York City. She can be reached at susan@dennehylawfirm.com. Copyright © 2018, Susan Dennehy.

Notes

1. Melvin J. Lerner, The Belief in a Just World: A Fundamental Delusion (1980). Lerner discusses how this belief is a delusion that people need to function in a random world.

2. Melvin J. Lerner & Dale Miller, Just World Research and the Attribution Process: Looking Back and Ahead, 85 Psychol. Bull. 1030 (1978).

3. David Wenner & Gregory S. Cusimano, Reframing the Model, Trial 26 (Mar. 2008).

4. Laura Niemi & Liane Young, When and Why We See Victims as Responsible: The Impact of Ideology on Attitudes Toward Victims, 42 Personality & Soc. Psychol. Bull. 1227 (2016), https://tinyurl.com/y9xlow49. According to Niemi and Young, binding and individualizing values are generally congruent with political orientation; people holding strong binding values are more likely to identify as conservative. 

5. Jonathan Haidt & Craig Joseph, Intuitive Ethics: How Innately Prepared Intuitions Generate Culturally Variable Virtues, 133 Daedalus 55 (Fall 2004); see also Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (2012).

6. See Moral Foundations, http://www.MoralFoundations.org.

7. See Jesse Graham et al., Mapping the Moral Domain, 101 J. Personality & Soc. Psychol. 366 (Aug. 2011); Laura Niemi & Liane Young, Who Blames the Victim?, Psychol. Today (Aug. 18, 2016), www.psychologytoday.com/blog/morality-in-language/201608/who-blames-the-victim; Krista Tippett, The Psychology Behind Morality: Interview With Jonathan Haidt, On Being (June 12, 2014), https://onbeing.org/programs/jonathan-haidt-the-psychology-behind-morality/; see also Wenner & Cusimano, supra note 3

8. Niemi & Young, supra note 4, at 1239.

9. Id.

10. These statements are adapted from the Moral Foundation website, supra note 6; see also Haidt, supra note 5. 

11. Both individualizing and binding values jurors care about fairness, but binding values jurors subscribe to fairness more as reciprocity or payback rather than equality. See Laura Niemi & Liane Young, Who Sees What as Fair? Mapping Individual Differences in Valuation of Reciprocity, Charity, and Impartiality, 30 Soc. Just. Res. 438 (2017); see also Haidt, supra note 5; Moral Foundations, supra note 6.

12. See Daniel Kelly, Yuck!: The Nature and Moral Significance of Disgust (2011).

13. Niemi & Young, supra note 4, at 1228, 1235.

14. See Laura Niemi & Liane Young, Who Blames the Victim?, Op-Ed., N.Y. Times (June 12, 2016), www.nytimes.com/2016/06/26/opinion/sunday/who-blames-the-victim.html.

15. See David Ball, David Ball on Damages 3 at 125, 375–84 (3d ed. 2011) for an excellent example of this strategy; see also Daniel Kahneman & Dale T. Miller, Norm Theory: Comparing Reality to Its Alternatives, 93 Psychol. Rev. 136 (1986), https://tinyurl.com/y7r8pp7w.

16. See Matthew Feinberg & Robb Willer, From Gulf to Bridge: When Do Moral Arguments Facilitate Political Influence?, 41 Personality & Soc. Psychol. Bull. 1 (2015); see also Robb Willler & Matthew Feinberg, Op-Ed., The Key to Political Persuasion, N.Y. Times (Nov. 13, 2015); Robb Willer, How to Have Better Political Conversations, TED (Sept. 2016), www.ted.com/talks/robb_willer_how_to_have_better_political_conversations.

17. Morteza Dehghani, et al, Purity Homophily in Social Networks, 145 J. Experimental Psychol. Gen. 366 (2016). 

18. See Niemi & Young, supra note 4.

19. See Kelly, supra note 12.