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Simple Jury Persuasion: Decreasing victim condemnation in sexual harassment cases

Wednesday, November 21, 2012
posted by Douglas Keene

If you remember the hearings on Clarence Thomas’ Supreme Court nomination and the sexual harassment testimony from University of Oklahoma law professor Anita Hill, you likely recall how Hill was vilified. What you may not know is that after her testimony, sexual harassment complaints more than doubled while damage awards to harassment plaintiffs more than quadrupled.

Attorneys representing plaintiffs in sexual harassment suits are all too familiar with the condemnation heaped on the victims of sexual harassment for not acting sooner (among other criticisms). Efforts to minimize this condemnation have always been at the forefront of advocates’ minds. Now, we have new research that points to very specific ways to minimize this condemnation. It’s good news for sexual harassment victims and their advocates. It’s also intuitively sensible.

Researchers completed a series of five studies examining why we are so eager to condemn the victim (aka “blame the victim”). All five studies are important as they build to the ultimate conclusion and so we will briefly summarize the findings. Another important factor in the research was the choice to use all female participants: “We studied female participants across our studies because they provide a conservative test of our hypotheses–women are likely to have a better understanding of and appreciation for the experience faced by the sexual harassment victim”. The participants were women of both college age and women recruited from the community whose ages varied and they had significant workplace experience.

Sexual harassment was depicted by presenting the following scenario to participants:

“A female student named Karen was being interviewed for a research assistant position on campus. She was being interviewed by a male (age 32) in an office on campus. During the course of the interview, the male interviewer asked Karen the following questions: 

Do you have a boyfriend? 

Do people find you desirable? 

Do you think it is important for women to wear bras to work?”

Participants in the initial three studies were then told that the female candidate (Karen) answered all three questions and thus behaved passively rather than confronting the interviewer/harasser. In the last two studies, some participants were told Karen answered the questions and others were told she did not respond, thereby confronting the harasser.

Study 1 and Study 2: asked participants to predict how they themselves would react if sexually harassed. Perhaps not surprisingly, participants predicted righteous indignation and said they would act much more forcefully than victims typically do in confronting the perpetrator. And again, perhaps unsurprisingly, the more forceful the participants predicted they would be themselves, the more condemning they were of the passive victim.

Study 3 examined the impact of instructing participants to consider the typical motivations reported by sexual harassment victims for not confronting the perpetrator. When participants considered those motivations [e.g., wanting to get the job and wanting to get along socially during the interview], their predictions for their own behavior if sexually harassed were much more consistent with those actually reported by sexual harassment victims.

Study 4 found that when important motivations experienced by victims were highlighted [e.g., wanting to get the job], participants were significantly less condemning of victim passivity.

Study 5 asked participants to recall a specific instance from their own workplace experiences where they had not acted when intimidated (although not sexually harassed). Again, their tendencies to condemn sexual harassment victims for passivity was decreased.

The researchers believe that the proud fantasy that we ourselves would act quickly and assertively in the face of harassment, leads to our condemnation of the typically passive victim of sexual harassment. When we are placed in situations that increase empathy with the victim (by simply considering their motivations or recalling the impact of being intimidated in the workplace) we are much more understanding and much less condemning.

They also discuss the importance of the distinction between two different forms of perspective-taking. It is one thing to imagine oneself in another’s shoes. It is quite different to instead focus on and imagine what the other person experienced. The first perspective does not always elicit empathy or an understanding of what their experience might have been like. The second often does.

We see this as an important study for the litigation advocate:

It outlines a specific strategy for decreasing the likelihood of a punitive and condemning attitude toward the plaintiff.

That strategy emphasizes the importance of situational factors on the plaintiff’s behavior as opposed to the plaintiff being a passive person (and thus somehow worthy of condemnation).

And that strategy results in a consistently empathic stance toward the plaintiff rather than an unpredictable tendency of some to condemn while others do not.

In light of our recent review and research on the phenomenon of false confessions (on our blog and coming in the next issue of The Jury Expert), it would be interesting to see how a similar research design would apply to these cases.

In essence, those who falsely confess during or following interrogation usually describe feeling harassed.

The wish to ‘escape’ the interrogation causes them to overlook the ramifications of their admitting to criminal acts of which they are innocent.

It sounds hard to believe that anyone would be so blind to the implications of cooperating with police in this way, but it happens. They confess in an effort to put an end to the aversive questioning. In the research design discussed here, the interviewee essentially acquiesces to the harassment in an effort to get the interview to conclude. In an effort to escape an uncomfortable interview and achieve her goal of employment, she overlooked the evident fact that this ‘boss’ feels entitled to cross sexual boundaries whenever he wants to, and that he is not likely to limit it to the job interview.

Keep in mind that this research was done with entirely female participants. This would speak to the value of using these strategies with a jury composed of a significant proportion of female jurors with workplace experience and representing a range of ages.  Given the number of these sorts of cases where we’ve seen women jurors condemn the victim, this is a terrific and relevant study for helping everyone understand the variation between inaccurate predictions of one’s own action and the typically passive behavior of the sexual harassment victim.

And while this research is a good start, it raises questions about how men would respond to similar behavior toward men, or how they would appraise a female faced with this interviewee’s situation. The complexities of establishing a healthy workplace culture oblige us to understand who judges the harassment complaints as valid, who judges the woman (in this scenario) as agreeable or complicit, and who feels that the whole construct of sexual and emotional harassment is invalid.

Diekmann, K., Walker, S., Galinsky, A., & Tenbrunsel, A. (2012). Double Victimization in the Workplace: Why Observers Condemn Passive Victims of Sexual Harassment Organization Science DOI: 10.1287/orsc.1120.0753

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