Simple Jury Persuasion: Action aversion versus outcome aversion
Today’s post focuses on ideas that will be familiar to many of you but the terms themselves will probably seem foreign. The research is about the role of emotion in our decisions about moral issues. Essentially, the research looks at emotional pathways to moral condemnation. What motivates our reaction to tragic injury? Is it about our empathy for the victim who suffered injury, or is it about our disgust at the method through which the victim was harmed?
Outcome aversion: When someone is hurt or killed through actions of another, empathy for the victim (due to their injuries) is believed to result in a desire to punish (or hold responsible) the perpetrator.
Action aversion: More recent research focuses our attention on the actual act taken that harmed the victim. For example, if the victim was stabbed, some researchers believe the emotional response to the harm/injury/stabbing would be triggered by the act of stabbing itself, rather than due to the harm to the victim.
The researchers illustrate these two concepts with a story about three sailors stranded in a lifeboat in 1884 with a severely ill cabin boy.
“Having no food, water, or hope of immediate rescue, their best chance at survival was to kill the fourth member of their crew, a severely ill cabin boy, and eat him. The idea seemed unthinkable at first, but the poor conditions of their situation quickly made the threat of death too serious to ignore. Early one morning, while the cabin boy lay unconscious, the captain pulled a penknife from his pocket and sliced through the boy’s neck.”
Most research would use our emotional reaction to the poor (dead) cabin boy (e.g., the outcome aversion) to explain our moral revulsion to the captain’s action. More recent thought has focused on our reaction to the act of cutting the boy’s throat itself (rather than our reaction to the poor boy dying). This is a morally complex story, though, similar to the Donner Party caught in a snowstorm, the soccer team whose plane crashed in the Andes mountains, et cetera. It offers opportunity for a listener to sympathize with the boy’s impending death, the hopelessness of the boy’s likely survival, the desperation of the other people in the boat, and the fiduciary duty of a captain to his crew.
The researchers did five experiments to test their ideas related to action aversion (e.g., condemnation driven by an aversive response to the action itself). In all five experiments, they found “consistent and strong support for the importance of action aversion in moral dilemmas”. Further, the researchers found the aversion to be related to an “evaluative simulation” wherein we imagine how we would feel emotionally if we had, ourselves, cut the cabin boy’s throat. They call this “first party aversion” and it can directly influence third-party moral condemnation.
That is, the stronger your aversion to thinking of yourself cutting the cabin boy’s throat, the stronger your condemnation of the third-party who actually did cut the cabin boy’s throat. Simply put, ‘If I wouldn’t do it, they shouldn’t do it, either”.
From a litigation advocacy standpoint, this is an intriguing strategy to consider. Our mock jurors (especially those under 40) often report they dislike lawyers who attempt to manipulate them emotionally by invoking sympathy for the victim.
Based on this research, you can intensify the desire to morally condemn the Defendant by focusing juror attention on what it would be like for them individually to have wielded the veritable knife cutting the cabin boy’s throat.
They will react emotionally and morally condemn, but not because you have manipulated them by calling (overtly) for sympathy for the victim.
Miller RM, Hannikainen IA, & Cushman FA (2014). Bad Actions or Bad Outcomes? Differentiating Affective Contributions to the Moral Condemnation of Harm. Emotion (Washington, D.C.) PMID: 24512250