CJ: Hello and welcome to the Feminist Law Podcast. I’m your co-host Courtney Jones.
CT: And I’m your co-host Clara Topiol. We’re both co-founders of the Feminist Law Project and final year law students who are very passionate about feminism and the law.
CJ: Today on the podcast, we have Dr Hildur Fjola Antonsdottir, post-doctoral fellow at the EDDA Research Center at the University of Iceland. Would you please introduce yourself?
HA: Yes, hi. My name is Hildur Fjola Antonsdottir, I’m doing a post-doc now at the University of Iceland at the Research Center. In my research, I’ve been focusing on mostly the question of justice for people subjected to sexual violence. I primarily focused on Iceland where I come from and also the other Nordic countries. But then of course, in the context of international literature on this question. The aspects I’ve been focusing on is both procedural justice, I’ve been looking at standing rights of victims in the criminal justice system in the Nordic countries and how survivors of sexual violence experience that and I’ve also been looking at survivors’ views on restorative justice and the justice potential from a survivor’s perspective and I’ve also been looking at survivor’s experience of justice and how they can be conceptualized. I find that at least some elements of them are connected to the concept of space. I’ve also been looking at how survivors’ views on monetary compensation and how they view monetary compensation in tort law and if they associate that with a form of justice to be awarded a form of compensation. That’s of course what we will be talking about today. I’ve been exploring how victims of sexual violence understand justice and how different traditional and non-traditional judicial mechanisms and practices can meet survivor’s justice interests.
CJ: That sounds absolutely brilliant and really interesting. To continue on from that, you recently published an article titled ‘Compensation as a means to justice? Sexual violence survivors’ views on the tort law option in Iceland’. Is Iceland’s compensation system that different from other European countries?
HA: No, I don’t think so. We have a similar system as many other civil law countries in that victims can file a compensation claim in a criminal case. If the criminal court finds the accused guilty, the court usually issues a compensation order. This is quite common in the civil law countries. At least in the Nordic countries at least, victims of serious crimes are afforded the assistance of an independent legal lawyer basically. Their services are paid for by the state and usually, this lawyer then writes up the tort claim and files it in the criminal case. There are examples also in Iceland of survivors suing offenders in private court cases but most of these cases, we associate with the US in particular. I do understand there are also quite some cases to be found in England and some notable cases from Scotland now as well. It is rare in the Nordic context that victims actually pursue civil tort cases against offenders.
CT: Thank you for that. So, if we delve deeper into the actual title of your article, could you please explain to our listeners what you mean when you refer to compensation as a means to justice?
HA: Yes. What I’m kind of trying to get at there is that the premise in my work is that justice for people subjected to sexual violence, particularly rape, is hard to find. As other scholars have noted, I believe that we need to develop multiple pathways to justice if we are to tackle the profound justice deficit characterised in these cases. In the article, I explore how survivors understand and experience monetary compensation and if and how compensation in tort law can be further developed to better meet survivors’ justice needs. I hope that explains a little bit where I’m coming from on this.
CT: Yes, that’s really helpful thank you. When I read your article, what I understood from it is that in the study you conducted for the article, you interviewed 35 survivors of sexual violence. I was wondering whether you think that the response would be different had you interviewed more or perhaps less survivors? And why you decided on 35 as your base number to conduct this research?
HA: Well, it’s always difficult to say how many interviews you should conduct. Ideally, most would say that you should conduct interviews until you stop hearing something new, right? That’s one rule of thumb. That can be difficult of course as well because you could go on forever although that is not usually the case. It is difficult to say how many interviews you should conduct. It is recommended that for a large analysis study like I did, that the number of interviews should be more than 30. It’s a lot of work to transcribe and analyse 35 in-depth interviews because most of the interviews were at least two hours or more and it can take a lot of time to transcribe and analyse all the data. It’s always difficult to say how many you should take but I think it is still important to say that my interviewees were largely white women with an Icelandic background, and they did not have intellectual or physical disabilities. Often in qualitative work, the idea is to transfer, to see if your findings are transferable onto similar groups. For this group of people, I think my findings were relevant, but more research would need to be done on different groups of people to see if there are other elements that come into play and other experiences that shape people to understand compensation.
CJ: Absolutely. So, taking a direct quote out of your article, you state that ‘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’. So, arguably, what they have lost cannot be numerically assessed for the most part, as you seem to express. So how do you reconcile the monetary compensation with the attack suffered?
HA: Yes, exactly. I talk about that a bit in the article because it’s a subject of everyday legal practice of course, assigning monetary value to personal injury. But I think that for a lot of us, it makes us very uncomfortable because we have to answer these questions: what’s the value of a life? The value of a lost limb? What’s the value of the harms of sexual violence? These are typical questions, and this is a dilemma that is well-known among legal scholars given that a harm and economic loss are often logically different, and this has been characterised as the problem of incommensurability: we cannot use the same measurements on these different elements. Money on the one hand and harm and sexual violence on the other. So then, what we’re left with, if we don’t want to do away with monetary or pecuniary compensation, we then must assess some symbolic meaning to it. Here, I follow the American legal scholar, Margaret Reading; she suggests that we understand compensation as a form of redress which affirms public respect for the existence of rights of the injured party and public recognition of the transgressor’s fault regarding this respect in rights. That’s where I end with this. If we don’t want to do away with non-pecuniary compensation, there is this thing about the symbolic value of it.
CT: Thank you for that. So going on from what you just said about compensation, there is limited evidence and figures available to assess how effective this monetary compensation is for victims of sexual violence. I was wondering how you managed to establish or what your thought process was in establishing how monetary compensation would be so effective and a potential answer to the problem?
HA: Yes, I think that it’s a very complex phenomenon. What I tried to do and will try to explain what I was thinking about: my findings suggest that in addition to the financial risk involved, most participants had very ambivalent views towards pursuing and receiving monetary compensation. At the same time, they would tell me about the extensive pecuniary and non-pecuniary losses that they had suffered; they said it was only fair to receive some compensation and they would talk about loss of salaries and wages due to time of work, interruption or discontinuation of their studies, extensive psychological counselling, physiotherapy and in some cases, the need to register for rehabilitation under the invalidity benefits. They would also talk about experiencing severely diminished quality of life due to anxiety, depression, flashbacks, nightmares, eating disorders, thoughts of suicide, suicide attempts… they explained how profoundly adverse this had impacted their sense of self and their relationship with their loved ones. They did talk about the loss and how profound it was, both pecuniary and non-pecuniary. But at the same time, they would say that, and this is what other studies have found, they didn’t necessarily want to accept this ‘dirty money’ or disgusting money because they felt that putting a price tag on what had been done to them was ridiculous at best and offensive at worst and receiving money from the offender was only creating a connection with the offender that they didn’t want to have, this implication of receiving money for having been subjected to sexual violence. This was complicated; they had a very nuanced answer to these questions. Many also thought that pursuing monetary compensation could undermine their credibility and this is something which came as a surprise to me, not maybe after the fact but it was interesting how they described that they didn’t want to file a compensation claim in their case because they would be playing into this myth that women just report rape for financial gains. This myth seems to be alive and well in our societies. That’s another element of complication here. And finally, also, they felt that monetary compensation was not really aligned with their ideas about justice, maybe a type of fairness but not justice in that sense. For most people I interviewed, justice was associated with a type of responsibility for what they did and the possibility of having offenders enrolled into educational programs to support them to take responsibility for their actions. Then, I started to think about whether it would be possible to develop this system in some way to better meet survivors’ justice interests? Firstly, I was thinking that it was very important to eliminate the financial risk of course; that’s the first hurdle. Here, I argue that survivors should be afforded the right to legal aid, to pursue civil claims outside the criminal justice system and that the state should guarantee the amounts awarded, if they are awarded, in the same way they would do for compensation in criminal cases. Here, I am looking at how the state can step into this process and create a hybrid public/private option, so to speak. Secondly, whilst participants talked about the importance of official legal recognition of having been subjected to wrongdoing, that that would meet some of their justice interests, they did not understand monetary compensation as meaningful consequences for the wrongdoer. So, then I was thinking, if the above and I mentioned proposals were enacted (legal aid), then the state would guarantee awarded damages, at least to a certain amount, in those civil torts since then. This would mean that the wrongdoer is indebted to the state. In order to further meet survivors’ justice interests, the state will then proceed to offer the wrongdoer a debt discount of some sorts if the person successfully completes a specially designed offender accountability program. That’s how I was trying to look at the policy implications of my findings.
CJ: That’s really interesting. In your article, you also mention a concept of the ‘taboo trade-off’. Could you please explain what this is and how it’s articulated in the context of sexual violence? What trade-offs are we actually talking about here?
HA: Different disciplines have shown how trade-offs between non-monetary goods on the one hand and money on the other can be considered problematic and even a taboo. So it has been argued that the exchange of profane material goods for sacred values such as honour, love and justice is considered to be a taboo. Just by even expressing the possibility of certain tradeoffs can undercut one’s image and degrade one’s moral standards. Based on my findings, there is a sense that monetary compensation, in the case of sexual violence, can be understood as a taboo trade off. The way in which participants talked about it is the fact there is something degrading about receiving money as justice in the case of sexual violence. The literature also suggests that taboo trade-offs can be more acceptable if the money is used for other important intrinsic goods. That’s what I was thinking also here. That’s why I suggested the possibility of giving this taboo trade-off an alternative meaning; if it’s possible to use the money to incentivise accountability. That is to offer the wrongdoer to enroll in a psycho-educational program where they are supported to take responsibility for their actions.
CT: Amazing thank you. I suppose that sounds like quite a forward-thinking means of compensation and maybe an alternative way to deal with this issue. Moving to your concluding statement of the article, you argue, and I quote that ‘state intervention is needed to better meet victim survivors’ justice interests’. How significant should the state’s involvement be in your opinion? And why do you think that the state hasn’t acted in the ways that you suggest it should so far?
HA: So, basically, I think maybe there is this element of trade-off. If we look at feminist movements and the survivors’ movements, the push has been for sexual violence to be taken seriously. There is a lot of efforts that have been put into making the criminal justice system more for women. We have decades of work now which is all about improving processes, education, improving the legal procedure etc… a lot of work has been done on that front. We still are facing the attrition rates especially in cases of rape are extremely high within the criminal justice system. I do think that it is paramount and it’s the state’s responsibility in my view to step in and find other possible solutions. In Iceland, we now have a new legislation that will come into force next spring which will give survivors of gender-based violence the possibility to apply for legal aid, to pursue a private tort case against their offenders if their case has been dropped by the criminal justice system. We do not have any policy in place to this end for the state to guarantee the amount awarded. We will have to see if and how this field will be further developed in the Icelandic context.
CJ: That’s really interesting. Just to conclude then, if people who are listening to this episode today want to learn, see where they can go to learn more about your research, where could they do this?
HA: Google scholar, I guess! I’ve only published one article on this particular issue, but I’ve published a bit more on these questions, more generally. I’ve been doing quite a lot of policy work in the Icelandic context but that’s unfortunately all in Icelandic. Online, google scholar!
CT: Brilliant, thank you so much for joining us today.
HA: Thank you so much for inviting me.
CT: In today’s feminist news roundup, US pharmacies can now sell the abortion pill mifepristone with the use of a prescription. These pills have seen a surge of interest in recent months following the Supreme Court decision to overturn the federal right to abortion.
CJ: Also in today’s feminist news roundup, the royal military academy Sandhurst has seen nearly 200 service women report abuse during their training and are now being urged to address a toxic culture of sexual assault.
CT: Finally, it has been found that TikTok promoted deepfake porn of pop star Billie Eilish to its For You Page. According to Vice, the images were viewed 11 million times before being removed for violating TikTok guidelines.
CJ: If you have any suggestions for this podcast, let us know directly via email at contact@feministlaw.org.
CT: Please also visit our website at feministlaw.org and follow us on Instagram and LinkedIn to keep up to date with our latest articles, podcasts, newsletters, and exciting news.
CJ: The music for this podcast was sourced from pixabay.com.
CT: Thanks for listening!
---
Transcribed by: Clara Topiol