New Zealand Law Society - Research indicates female sexual relationship has impact in civil litigation

Research indicates female sexual relationship has impact in civil litigation

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United States research has indicated that the introduction of information about women's sexual relationships may have a negative impact on them in civil lawsuits, except when it is a suit about sexual harassment.

Vanderbilt University law professors Joni Hersch and Beverly Moran's have published their research as "Coitus and Consequences in the Legal System: An Experimental Study" SMU Law Review 68(4) Fall 2015, 927-949.

They say research has found that female perpetrators generally are less likely to receive punishment, although assailants with female victims, especially white female victims, receive harsher punishment. This effect is known as the "female victim penalty".

Men who physically harm their intimate partners receive less punishment than men who harm strangers.

"This effect is known as the intimate partner bonus and it does not attach to women, who are sometimes punished more for killing intimate partners than are men who commit the same crime."

Professors Hersh and Moran say that no one has explored whether the female victim penalty or the intimate partner bonus hold for civil liability as well.

To address this, they mounted an 800-participant survey with the objective of finding whether legal decision makers hold sexual activity against females in civil settings.

Participants received four scenarios - a homicide, a workplace sexual harassment, a long-term business relationship, and a short-term joint venture - with randomised information about prior sexual activity between the parties.

They say that, as in the criminal setting, "the results show that the taint of a sexual relationship hurts women, even in civil lawsuits".

However, the results also show that evidence of sexual activity did not hurt the female complainant in the sexual harassment scenario and it actually increased the male killer's liability in the homicide scenario.

"The results also suggested that male jurors may be more influenced by evidence of a female's sexual activity than are female jurors."

Professors Hersch and Moran sound a note of caution to practising lawyers. They say they have anecdotal evidence that practising attorneys worry about whether sexual relationships will harm their female clients' ability to recover in transactional disputes.

"In fact this research was prompted by that anecdotal evidence. Unfortunately, the results of this study do suggest that women are punished for their sexual relationships even in civil lawsuits - in business, if not in employment, settings - by both men and women; and that they are particularly harmed by male decision makers."

On the other hand, the professors say, attorneys in sexual harassment suits might consider taking cases that they might previously have avoided because of the taint of a sexual relationship given that the "nuts and sluts" defence - "the defence we expected to be the most successful in the sexual harassment scenario" - did not gain traction with any of the survey participants.

"This might be the most surprising finding in our results. If US residents have changed their view of female sexual activity to such an extent that they were willing to find liability for sexual harassment even between parties who were previously in a sexual relationship, this new view of female sexuality might make prior sexual behavior legally irrelevant in sexual harassment lawsuits."

The research may be downloaded without charge from the Social Science Research Network Electronic Paper Collection: