Anaya Nolan
Victim-blaming occurs when the victim of a crime or any wrongful act is held entirely or partially responsible for the harm that befell them. While there are no explicit laws against victim-blaming, it is considered an act of legal heresy by feminists, victim advocates, and many criminal law scholars. The aversion to victim-blaming is likely why there is a lack of legal scholarship on formal victim-blaming defenses. However, the criminal justice system does contain doctrines that absolve defendants of liability based on the conduct of the victim, such as self-defense and provocation. Victim-blaming attitudes can have detrimental effects, reinforcing the abuser's narrative and making it harder for victims to come forward. It is important to recognize that blaming the victim assumes they are equally responsible, when in reality, abuse is a conscious choice made by the abuser.
Characteristics and Values of Victim Blaming
| Characteristics | Values |
|---|---|
| Assigning blame to the victim | Creating psychological distance between the blamer and the victim |
| Holding the victim entirely or partially at fault | Self-defense, defense of others, defense of property |
| Ideal victim theory | Victim precipitation |
| Misogyny and racism | Individualizing values, binding values |
| Scrutinizing the behavior of the victim | Respectability politics |
| Victim's lifestyle and character | Gay Panic Defense |
| Secondary victimization | Non-specific victim liability defense |
| Biopsychiatric models |
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What You'll Learn
Rape culture and victim blaming
Rape culture is an environment in which rape is prevalent and sexual violence is normalized and excused in the media and popular culture. It is perpetuated through the use of misogynistic language, the objectification of women's bodies, and the glamorization of sexual violence, creating a society that disregards women's rights and safety.
Victim blaming is a common occurrence in rape culture, where the victim of a crime or wrongful act is held entirely or partially responsible for the harm they suffered. In the context of rape culture, victims of sexual assault are blamed for their attack because they are not considered "ideal" or "real" victims. This can be due to leading a "high-risk" lifestyle, such as drug use or promiscuity, or knowing the attacker intimately. The perception is that these behaviours discredit the victim's claim or create an assumption of consent.
The just-world fallacy is one explanation for victim blaming, where people reject the idea that bad things happen randomly and believe that victims must have done something to deserve it. This implies that people can avoid victimization by behaving correctly. Victim blaming can also be driven by a desire to distance oneself from the unpleasant occurrence, confirming one's invulnerability to the risk. For example, by thinking "I am not like her, so this would never happen to me".
Judicial proceedings have also contributed to victim blaming. Until recently, criminal courts in some jurisdictions considered sexual infidelity as a mitigating factor in murder cases, reducing the charge from murder to manslaughter. In statutory rape cases, psychological arguments about the victim's appearance have been used to acquit defendants, blaming the victim for their own abuse.
Organized groups and survivors are pushing back against victim blaming, especially in cases of rape and police brutality. New research in social psychology is helping to understand the mindset of victim-blamers and develop strategies to combat this ideology.
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The just-world fallacy
Lerner conducted a series of experiments to test his hypothesis. In one experiment, subjects who were told that a fellow student had won a cash prize in a lottery tended to believe that the student worked harder than another student who lost. In another experiment, subjects formed much lower opinions of "victimized" participants when there was no possibility of relief from the ordeal. Lerner concluded that "the sight of an innocent person suffering without the possibility of reward or compensation motivated people to devalue the attractiveness of the victim".
Research has found that people who strongly believe in a just world tend to be more religious, more authoritarian, more conservative, and more likely to admire political leaders and existing social institutions. They are also more likely to blame the poor for their circumstances, rather than identifying external causes such as world economic systems, war, and exploitation.
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Victim-blaming in court
Victim-blaming is a social psychological phenomenon where individuals or groups cope with traumatic events by assigning blame to the victim. This phenomenon can be traced back to 17th-century English common law, where judges would advise caution when examining the testimony of a female rape accuser. This caution towards victims has persisted, with a greater tendency to blame victims of rape than victims of robbery if there was a prior relationship between the victim and perpetrator.
In court, victim-blaming often occurs when the victim of a crime is held partially or entirely at fault for the harm they suffered. For example, in cases of rape, victims are blamed for assuming the risk by engaging in behaviours perceived as unsafe, such as walking alone at night, drinking, or having a personal relationship with the perpetrator. This type of victim-blaming can be seen in the application of the "ideal victim theory", where victims who do not resist their attacker or exercise caution in risky situations are deemed less credible.
The "non-specific victim liability defence" is a legal doctrine that absolvies defendants of liability based on the victim's conduct. This defence requires that:
- The victim engaged in sufficiently wrongful conduct.
- The wrongful conduct caused the defendant to commit the offence.
- The defendant was not predisposed to commit the offence.
- The defendant's response balances against the victim's wrongful conduct, warranting exculpation or mitigation of punishment.
However, critics argue that this defence lacks doctrinal coherence, arbitrarily providing defences to certain defendants while excluding others. Furthermore, it has been criticised for excusing crimes committed due to the defendant's racist, homophobic, or patriarchal beliefs rather than the victim's conduct.
Organised groups and advocates are pushing back against victim-blaming, particularly in cases of rape and police brutality. This pushback is supported by new research in social psychology, which helps understand the mindset of victim-blamers and develop strategies to combat this ideology.
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The Gay Panic Defense
- Insanity or Diminished Capacity Defence: The defendant alleges that the victim's romantic or sexual proposition triggered a nervous breakdown because of the victim's perceived or known LGBTQ+ identity. This defence is based on the discredited psychological term "gay panic disorder", which was removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973.
- Provocation Defence: The defendant claims that the LGBTQ+ victim's romantic or sexual proposition provided reasonable provocation for the attack or murder. This defence stigmatizes LGBTQ+ identities by implying that they are inherently harmful, dangerous, and deserving of violence.
- Self-Defence: The defendant argues that they believed the victim intended to cause serious bodily harm because of the victim's sexual orientation or gender identity.
While there is no standalone "gay panic defence" recognised by any U.S. state, defendants have used panic defences in conjunction with other defence strategies to attempt to reduce the severity of their charges or sentencing. As of 2023, all Australian states have either abolished the provocation defence or have restricted its application to exclude non-violent sexual advances as a valid defence.
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Victim liability defenses
Victim blaming is an act of legal heresy to feminists, victim advocates, and many criminal law scholars. However, criminal law contains doctrines that absolve defendants of liability based on the victim's conduct. These are called victim liability defenses.
There is a lack of doctrinal coherence in the existing victim liability defenses. They arbitrarily provide defenses to some defendants who respond to victim conduct and not to others. The "non-specific victim liability defense" is a defense that applies to any crime. It requires that:
- The victim engaged in sufficiently wrongful conduct.
- The wrongful conduct caused the defendant to commit the charged offense.
- The defendant was not predisposed to commit the charged offense.
- The defendant's response balances against the victim's wrongful conduct and dictates that the defendant should be exculpated or punishment should be mitigated.
Some of the other victim liability defenses are:
- Self-defense: The defendant used violence in a justified way to respond to violent actions or the threat of violent actions from the victim.
- Defense of others: The defendant used violence to protect someone else, such as a spouse, a child, another family member, or even a stranger.
- Defense of property: The defendant's actions were in defense of their property.
Civil Liability Defenses
Civil liability refers to being responsible for debts or wrongdoing against another private party. In civil liability suits, there are several defenses that may be used to either shift or deny responsibility. Some of the defenses are:
- Contributory Negligence: The defendant claims that the injured party contributed to their harm and thus should not be held liable.
- Comparative Negligence: If a court determines that more than one party is liable for the harm caused, they may split the liability among the various liable parties.
- Strict liability: The defendant is held responsible even if they took all necessary precautions and adhered to safety requirements. This is because the defendant should reasonably be able to foresee that someone could be harmed by their actions.
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Frequently asked questions
Victim blaming is when the victim of a crime or any wrongful act is held entirely or partially at fault for the harm that befell them.
Some examples of victim blaming include scrutinizing the behaviour of the victim, their clothing, or their lifestyle choices. For instance, in cases of rape, victims are blamed for "assuming the risk" by engaging in behaviours such as walking alone at night, drinking, or taking a date to their house.
The just-world fallacy is one explanation for victim blaming. This is the belief that bad things happen to people because they did something to deserve it, and that people can avoid being victims by behaving correctly. Victim blaming also serves to create psychological distance between the blamer and the victim.
While there is no specific legislation mentioned, the general consensus is that victim blaming is unacceptable and should not occur. However, in practice, victim blaming still occurs and can influence legal proceedings. For example, in sexual assault cases, the ideal victim is often perceived as one who resists their attacker and exercises caution in risky situations. When victims deviate from this ideal, they risk being blamed for their attack.
New research in social psychology is helping to understand the mindset of victim blamers and develop strategies to combat this phenomenon. Additionally, organized groups and advocates are pushing back against victim blaming, particularly in cases of rape and police brutality.
