Sexual Wrongdoing: Do the Remedies Reflect the Wrong
J. Richardson & E. Rackley, eds., Feminist Perspectives on Tort Law, c. 10 (Routledge, 2012)
Posted: 15 Nov 2013 Last revised: 14 Jul 2016
Date Written: 2012
Feminist theorizing has helped to unpack the relationship between law and society and the ways in which they influence and draw on each other in the legal and social imagination. Examples include the marginalization of women’s experiences, construction of gender roles, and the perception and valuation of injuries that predominantly affect women. It is also important to be attentive to intersecting factors that determine one’s experiences in law and society in addition to gender, such as race, (dis)ability, sexual orientation, religion, etc., that enhance vulnerability for sexual victimization.
Sexual victimisation may be experienced irrespective of gender, socio-economic status. However, perpetrators often target society’s most vulnerable; persons lacking social, economic, and political power. Victims are overwhelmingly female and/or vulnerable on other grounds, such as childhood, disability, racialization, socio-economic location and institutionalization.
It is therefore important that the process of seeking redress and remedies for sexual interference should not exacerbate survivors’ experiences of marginalization. Rather, their interests should be valued and protected in ways that promote therapeutic outcomes for survivors. This may require a re-conceptualization of the purpose of tort remedies beyond the current focus on restitutio in integrum, which is grounded in corrective justice. Harms from sexual wrongdoing tend to be intangible and do not always map onto traditional notions of tortious injury. Hence, a broader view of the goal of tort remedies that are attentive to survivors’ experiences of victimization is required to ensure remedies are meaningful. The goal of this chapter is to explore whether the tort system is sufficiently attentive to the unique circumstances of survivors of sexual wrongdoing. While there has been greater receptivity to claims of sexual wrongdoing, remedies are not equally attentive to the nature and consequences of sexual interference for survivors. This is in part due to the characterization of harms commonly experienced by survivors as intangible, which are generally devalued in the tort system compared to tangible harms.
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