Many criminal wrongs, such as rape, are also civil wrongs for which a claim for compensation can be brought in tort law. When applied to tort law, the law of civil wrongs gives the individual the right to sue to protect their rights. While tort law is ostensibly neutral, feminist scholars have pointed to evidence of structural biases in legal practice which function to the detriment of women and minorities (e.g. Bender 1993; MacKinnon 1979; Chamallas 1998; Conaghan 2003; Adjin-Tettey 2004; Chamallas and Wriggins 2010; Richardson and Rackley 2012). Scholars have problematised the gendered conceptualisation of the culpa rule in tort law. Under this rule, a person can be held liable for causing harm either intentionally or negligently. The criterion of negligence is often described as “the traditional standard of care expected of a reasonable man (a bonus pater familias)” (Björnsson 1999, 296). i.e. how a reasonable man would behave under the same or similar circumstances. While the “reasonable man” has been replaced by the “reasonable person” in many jurisdictions, the notion has historical roots in legal systems and intellectual culture that did not recognise women as capable of reason (Bender 1993). Feminist scholars have also shown how standards of care are gendered (Bender 1988) and have asked how a reasonable woman would behave under those circumstances (Finley 1989). In addition, Chamallas (1998) has shown how the “deep cognitive structures in tort law are not neutral” but rather reflect biases, such as when it comes to hierarchies of value where physical injury and damage to property are valued more highly than emotional injury or relational harm (468).
However, in the context of sexual violence and in comparison to criminal law, scholars have pointed out that there are a number of advantages to bringing a civil claim. Firstly, the standard of proof in private law/civil law is lower than in criminal law. Secondly, the plaintiff takes the role of full legal subject, having more control over the action, which can have an empowering effect for the harmed person. Thirdly, although private/civil suits are intended for private wrongs and criminal law for public wrongs, both can function as a deterrent in practice. In addition, a growing number of successful claims can motivate others to take legal action and hence have a public impact (Perry 2009; Godden 2013; Swan 2013).
On the other hand, the main drawbacks include the lack of limitations on the admissibility of sexual history evidence, financial risk for plaintiffs and impecunious defendants (Godden 2012). MacKinnon (1979) has further emphasised how sexual violence is not only wrong and a personal injury, but “a social wrong and a social injury that occurs on a personal level”, and should therefore not simply be treated as a tort (173). Similarly, Godden (2012) points out that “framing rape as a civil as opposed to a criminal wrong, and placing the responsibility of pursuing a case on the survivor, could trivialise and privatise the wrong and harm of rape” (164). The civil law option is therefore not without its set of challenges.
While the rationales and purposes of injury law are varied, influential theories on how to understand tort liability encompass the notions of deterrence and corrective justice. The goal of deterrence is often explained within the framework of economics. Here, people’s rational motivations are understood along the lines of profit or welfare maximisation, where justice is conceived of in terms of efficiency. The idea is that the economic rational tortfeasor is deterred from behaving in a way that causes injury to others (Schwartz 1996). The idea behind corrective justice can be traced back to Aristotle, and holds that injustice occurs when one party realises a gain and the other a corresponding loss. The role of the law is to correct this injustice by depriving one party of the gain and restoring it to the other party (Weinrib 2002). In that sense, the purpose of compensation is to restore injured persons to the same state that they formerly enjoyed before the harmful event (Miers 2014).
Other theoretical developments within tort law include considerations of distributive justice. Some argue that corrective justice refers to legal relationships between individuals; is categorically different from public law and that the norms of distributive justice have no place within the law of torts (Weinrib 1995/2012). Others, however, have shown how tort law not only incorporates corrective justice but also distributive norms (e.g. Cane 2001; Keren-Paz 2007; Gardner 2013). The allocation of rights and the act of adjudication are, for example, always a matter of distributive justice. And while plaintiffs and defendants bear most of the legal costs of the tort case, the courts do not recoup its full running costs from its users and is therefore partly dependent on public funding (Gardner 2013).
While it is the subject of everyday legal practice, assigning monetary value to personal injury can make people deeply uncomfortable, as we are confronted with questions such as: What is the value of a life? What is the value of a lost limb? And what is the value of the harms of sexual violence? This dilemma is well known among legal scholars, given that harm and economic loss are ontologically of a different kind. This has been characterised as a problem of incommensurability, i.e. when different values lack a common measure (Sunstein 1993; Radin 1993; Abel 2006). If we do not want to do away with non-pecuniary compensation, we must assign symbolic meaning to it. Radin (1993) suggests reconceptualising corrective justice so that compensation is understood as a form of redress which affirms “public respect for the existence of rights and public recognition of the transgressor’s fault with regard to disrespecting rights” (57). I would, however, suggest that Radin’s emphasis on public respect and public recognition indicates that her formulation of corrective justice is perhaps rather informed by the norms of distributive justice, which, as has been shown, are also at work within tort law.
However, if monetary compensation for non-pecuniary losses poses a conundrum in legal thought, it thus begs the question of how people who have been subjected to sexual violence understand monetary compensation.
Views on compensation in cases of sexual violence
In the Nordic countries, there is scant research on the meaning of monetary compensation to victims of crime in general, let alone specifically in cases of sexual violence. In Sweden, Dahlstrand (2012) conducted a survey on views towards compensation both among the general public and among victims of different types of crime, including sexual violence, who had applied for compensation from the state-based compensation scheme. For around 38% of victims, the compensation was perceived to be very meaningful, but for 62%, it had limited or no meaning. Of the latter group, 74% also reported that they were still experiencing the negative effects of the crime. However, 85% of victims thought that compensation for non-pecuniary damages was of considerable or great importance, even if the harm cannot be compensated with money, and 76% of the general public felt the same way. Furthermore, 85% of victims thought it important or very important that the offender should pay the compensation and not the state, and 90% of the general population felt the same (Dahlstrand 2012).
In Norway, a study was conducted on the effects of compensation for victims of crime, largely based on interviews with 39 people who had received compensation from the Norwegian Criminal Injuries Compensation Authority (Viblemo et al. 2019). Importantly for victim-survivors of sexual violence, the findings indicate that being awarded compensation is particularly important for victims in cases that have not ended with a guilty verdict, since it affords them a sense of being believed or acknowledged as victims. In addition, compensation tends to have greater significance for those who have been subjected to serious crimes (such as sexual violence) than less serious crimes (Viblemo et al. 2019).Footnote 9
In the context of Western countries, there is limited research on how victim-survivors of sexual violence experience pursuing individual civil suits against their offenders. A Canadian study from the year 2000 includes interviews with survivors of sexual violence who had pursued three different avenues for compensation: i.e. state compensation (n = 48), negotiated settlement of a class action claim against a state-run custodial institution for girls for historical sexual abuse (n = 26), and civil litigation (n = 13) (Feldthusen et al. 2000; see also Des Rosiers et al. 1998). The findings indicate that a common motivation for survivors for pursuing compensation is to seek public affirmation of the wrong and to have their experiences acknowledged as harmful. Some, however, also reported that they had experienced the financial awards as “dirty money”, “hush money” or “blood money” (Feldthusen et al. 2000, 98).
Other studies have explored the meaning of money to victim-survivors of sexual violence who have applied for state-based compensation schemes. Holder and Daly (2018) interviewed 20 survivors who applied for financial compensation to a state-based scheme in Australia. For half of the participants, this payment primarily represented acknowledgement for the harm they had suffered or a form of justice; for six participants, it primarily meant practical assistance; and the remaining four did not have a positive view of the payment. In terms of their motivations for applying for compensation, survivors described being initially ambivalent. One said, for example: “I didn’t want anyone to think that I was going for the money,” and another said: “I felt like I was being paid for being sexually assaulted” (Holder and Daly 2018, 33). Most said that ideally, they would have wanted the offender to pay instead of the state or the taxpayer (Holder and Daly 2018).
Smith and Galey (2018) conducted a study in England and Wales where they interviewed 22 Independent Sexual Violence Advisors (ISVAs) who assisted rape survivors and who regularly supported survivors to claim compensation. The results indicate that survivors’ decisions about whether to apply for compensation were characterised by “tension between wanting validation and fear of being stigmatized” (Smith and Galey 2018, 1095). One survivor, for example, had been warned by the police not to file for compensation until after the trial so that she would not be accused of lying for money. Furthermore, survivors often viewed the compensation as “dirty” or “tainted”, and that it wasn’t appropriate for this type of crime (Smith and Galey 2018, 1096). Some survivors were under the impression that the money would be paid by the offender, and were put off applying because they didn’t want to accept anything from the offender. The main driving factors for applying for compensation were “financial burdens and a sense of reparation” (Smith and Galey 2018, 1096). Those survivors who received compensation tended to be satisfied. ISVAs said that some survivors were “just grateful to get any compensation!” and that “the amount of money is something they can use for something positive” (Smith and Galey 2018, 1101). However, in claims for “less serious” sexual offences, which result in lower awards, survivors can sometimes perceive the amount “as trivializing their experiences” (Smith and Galey 2018, 1101).
Research on how victim-survivors of sexual violence understand and experience monetary compensation for the harms of sexual violence is seemingly limited, particularly in the Nordic context. However, the studies above suggest that compensation can have important practical and symbolic meaning for people who have been subjected to sexual violence in the form of acknowledgement of the harm they had suffered and the relief of financial burdens. At the same time, survivors may attach negative connotations to monetary compensation, perceiving it as ‘dirty money’ and as being paid for having been subjected to sexual violence. In addition, some survivors are reported to be hesitant to pursue compensation due to social stigma around myths about women lying about rape for monetary gain.
As Zelizer (1994) has shown, people do not necessarily treat money as fungible, and the social meaning of money is varied and can change over time in different transactional contexts. Scholars in different disciplines have shown how trade-offs between non-monetary goods and money can be considered problematic, and even taboo. This includes scholars in sociology (Durkheim 1912/1995; Fiske 1991; Simmel 1900/2011; Zelizer 1994), law (Calabresi and Bobbit 1978; Sunstein 1993; Radin 1993) and psychology (Fiske and Tetlock 1997; Tetlock et al. 2000). Scholars have recognised that “human societies denote certain things, relationships, and actions as special/sacred and distinct from the merely secular/profane” (Shen 2013, 1015). In particular, Tetlock et al. (2000) argue that the exchange of profane material goods for sacred values such as honour, love and justice is considered to be taboo.
Taboo trade-offs differ from the more familiar problem of cognitive incommensurability, i.e. where people reject certain trade-offs because the requisite mental process involved is unfamiliar or difficult. Taboo trade-offs draw on the notion of constitutive incommensurability, which has moral implications. This is when people believe that a certain value trade-off subverts or undermines the traded value (Fiske and Tetlock 1997). Fiske and Tetlock (1997) understand taboo trade-offs as “any explicit mental comparison or social transaction that violates deeply-held normative intuitions about the integrity, even sanctity, of certain forms of relationship and of the moral-political values that derive from those relationships” (256). They also contend that merely making explicit the possibility of certain trade-offs undercuts one’s self-image and degrades one’s moral standing. Moreover, to transgress this normative boundary is to disqualify oneself from certain social roles (Fiske and Tetlock 1997). It has been suggested that for victims of crime, in particular victims of sexual violence and violence in close relationships, the problem of trade-off can be particularly poignant when it comes to assigning a monetary value to the harm they have suffered and to non-pecuniary losses (Pemberton 2009).
In a web-based experiment, Shen (2013) tested the taboo trade-off theory in the context of monetary compensation for the harm of sexual assault. Participants (n = 743) were first randomly assigned to rate the harm described in multiple vignettes using either a dollar metric, a seven-point harm scale metric, or a years-in-jail metric. Then, participants were given the opportunity, but were not required, to provide a comment when making their assessment. The findings showed that participants who were assigned to assess vignettes using the dollar metric were significantly more likely to refuse to answer and significantly more likely to provide comments related to constitutive incommensurability than the participants who were assigned the seven-point harm scale metric or the years-in-jail metric. The relationship was even stronger when the level of sexual assault in the vignette increased. However, in spite of these significant differences, 80% of participants completed the evaluation of the dollar metric vignettes, despite any reservations they might have had (Shen 2013).
In this context, however, the symbolic framing of the compensatory act has been shown to be important (McGraw and Tetlock 2005). For example, the pairing of compensation with an expression of concern or an apology can result in more favourable reactions in victims compared to compensation alone or only an apology (Schmitt et al. 2004; Okimoto 2008). Furthermore, it has been suggested that taboo trade-offs can be more easily accepted if the money is used for other important intrinsic goods rather than for instrumental purposes (Sunstein 1993). There is therefore reason to believe that monetary compensation for the harms of sexual violence is not fully compatible with victim-survivors’ justice interests.