There is a story making the rounds on social media, unfortunately a true story, about two Argentinian young women in their twenties. Maria José Coni and Marina Menegazzo were traveling the world together and found themselves in Ecuador without a place to stay for the night. They accepted an offer from two men they didn't know. A few days later, their bodies were found in plastic bags by the side of the road. Your first thought might be, "How awful," and focus on the monsters who committed those murders. And your second thought might be, "What were they thinking?" and focus on the the judgment of the two young women in putting themselves in the hands of strangers. And for some of us -- be honest -- that second thought, "What were they thinking?," was really the first thought.

There is a human tendency to focus on the victim, and that tendency can sometimes translate into disproportionate blame. But that tendency is not distributed equally. Knowing something about your own individual moral foundations, I could have predicted which readers would focus first on the victims and which would focus first on the perpetrators. And language and framing also plays a role. Note that the story above is framed as being about two young Argentinian women. If it was instead framed as being about two Ecuadorian predators, your focus would be different. That, in a nutshell, is the conclusion of new research (Niemi & Young, 2016) looking at the question, "Why do victims sometimes receive sympathy and sometimes receive blame?" Over the course of four studies, the authors focus on the content of individual moral values in order to predict attitudes toward victims in scenarios like the one above. They find that those who put the greatest emphasis on the "binding values" of loyalty, obedience, and purity will increase blame toward victims, while those who emphasize "individualizing values," focusing on care, fairness, and a prohibition against harm, will instead focus foremost on the perpetrators. This research carries clear implications for litigators: In both civil and criminal contexts, there are perceived victims and perpetrators, and the individual differences in how we blame one versus the other is important to both jury selection and message construction.

The researchers, Laura Niemi and Liane Young (2016), psychologists from Harvard University and Boston College respectively, conducted four independent studies based on scenarios involving sexual and non-sexual crimes, measuring participants' default moral judgment styles, and also varying the language in the descriptions. Their main finding had to do the the participants' moral values: "The higher participants were in binding values," meaning purity, loyalty, and obedience, "and the lower they were in individualizing values," meaning care, fairness, and the avoidance of harm, "the more they judged victims as responsible and as having made a difference to the outcome." And it is not just a matter of focusing on a bit of shared responsibility on the victim's part, it is an effect that extends all the way to what they call "inverted moral judgment," where the victim receives more attention and more blame than the perpetrator. They also observed that these moral foundations bleed over into non-moral decisions, like causal responsibility. They concluded, "Binding values are linked with victim stigmatization, whereas individualizing values are linked with sensitivity to victim suffering."

This carries a few implications for trial lawyers.

It's Morals, Not Just Politics

In this publication, I have long noted that political affiliation is one of the more reliable demographic predictors of likely leaning in a criminal or civil case, with Republicans and political conservatives being more likely to lean toward a civil defendant and away from a criminal defendant. Their emphasis on personal responsibility and "law and order" values makes the right-leaning juror more likely to accept the prosecution's argument and more likely to hold the line against "frivolous" civil lawsuits. Based on that dynamic, you might expect that the kinds of victim blaming that take place in civil cases at least, would be an effect of political leaning. Niemi and Young, however, sought to separate the effects of political leaning from moral foundation. While the two are correlated, the real predictor of victim blame is the "binding" moral values of loyalty, obedience, and purity and not the political leaning.

That suggests that, even when one cannot find out or estimate a juror's political affiliations, litigants should try to use voir dire and supplemental juror questionnaires in order to assess the venire members' moral foundations, and use those foundations as bases for selection and work them into the case story.

It's Also About What Might Have Been

Niemi and Young also assessed focus on the victim versus the perpetrator in the research participants' counterfactual thinking -- meaning their thoughts on what could have happened, but didn't. After getting reactions to a scenario, they asked, "How could the outcome of this situation have been different?" and then compared the number of victim-directed versus perpetrator-directed statements. They also measured information-seeking about each: "If you could have more information about only one of the people in the scenario in order to answer these questions, which one would you pick?" Those who relied most strongly on the binding values of loyalty, obedience, and purity also wanted to know more about the victim, and generated more counterfactual thoughts about the victim rather than the perpetrator.

This means, in addition to investigating and adapting to those moral foundations, it also helps to take control of that counterfactual-generating process and talk explicitly with jurors about what might have been, and putting the emphasis where you want it.

And It's About Framing

Prior studies showed that where we place the spotlight of attention matters as well. A reduced focus on the perpetrators and an increased focus on the victims contributes to a perception that the victims are blameworthy, and perversely, that the perpetrators are less responsible. Niemi and Young, in their third study, also manipulated the language in the scenario descriptions to focus on victim or to focus on the perpetrator. In one version, a majority of the statements (over 75 percent) included the victim as grammatical subject (e..g., through the passive voice, X was assaulted by Y) and in the other version, the emphasis was reversed to highlight the perpetrator. The researchers found that a focus on the victim corresponded with an increased focus on the victim's responsibility and a decreased focus on the perpetrators.' "It may be surprising," they note, "that focus on the victims did not increase sympathy for victims. Instead, our findings suggest that a more effective strategy for addressing victim blaming would involve increased focus on the perpetrator."

In other words, this is one area where the Reptileproponents on the plaintiff's side are right: Trying to appeal to sympathy by putting your client in the center of the story does not build actual sympathy. Instead, it does the opposite, inviting jurors to put themselves in the plaintiffs' shoes and think about all of the ways that they themselves would have avoided this harm.

While the framing effects were significant, they were relatively modest when compared to the moral foundation effects. The bottom line conclusion of the study is, "the more that people endorse individualizing values, the more straightforward their moral judgments of victims and perpetrators will be: Perpetrators, and not victims, will be blameworthy."