Monday, February 8, 2010

The victim relativity of harm (or "hedonic damages")

This may be relevant to those interested in jurisprudence but it can be a separate moral question. Just to what degree is a person that has immorally committed harm against someone (by violating some of their rights e.g.) responsible for that harm?

In tort law, people can sue for psychological damage. But it seems that the amount of harm may be different as a function not only of the kind of act done but also of the psychological makeup of the victim. Some people are just more psychologically frail and more prone to develop problems when harmed by others. Much as the physical constitution of people differ quite a bit interpersonally and even diachronically (such as when we are in the extremes of age range) I imagine people's psychological constitutions differ just as much or more. Some people are very prone to physical injury, injury resulting from actions others will not be severely or at all harmed by.

Let's say that there's a group of people with an analogous tendency towards severe psychological injury. Let's also say that sometimes some cruel people are clearly responsible for psychologically harming them through emotional abuse by (illegally) harassing them. The same kind of abuse which simply result in momentary anger, resentment, and emotional distress in normal people will result in much more severe symptoms in these people. They might suffer debilitation because of their abuse (say they develop PTSD).

How much of their suffering will offenders be responsible for? Will they have to pay all their medical bills and pay pain and suffering for the restitution stemming from slights that most of us will simply shrug off in a day or two? What if these sensitive individuals can prove that they have suffered for years or decades from the symptoms?

A judge might adjudicate this by an appeal to counter-factual "normal" "baseline circumstances." That is, how well could these people have gotten on in society even if there had been no particular case of abuse in this case? Their particular sensitive constitutions would likely render them not very well adapted to our society and that is not the fault of the perpetrators who had offended them. Judges may also use history and cases involving the same injurious actions in the past for a standard to determine the degree of harm done. So they might determine that perps are only responsible for the harm done up to a point which renders it "reasonable" and "fair" to burden the perps as restitution instead of complete restitution.

But that appeal is relative to the society, the type of people that happen to live in it. Neither the perps nor the victims are responsible for the society in which they live in. If we award the victims full restitution through the punishment of the perps, we seem to do an injustice to the perps since they cannot be responsible for the sensitive constitutions of the victims. That was out of their control. If we do not award the victims full restitution, we seem to do an injustice to the victims for they are not responsible for this society and its people which has as a normal baseline, significantly less sensitivity to psychological abuse than they.

What more stable and invariant standard can we use to judge culpability for that harm? Had the society contained more people like the victims, the standard would have been higher. In that society, more sensitive types would exist like the victims and so presumably, more people would look out after each other and be more careful to avoid harming each other psychologically through harassment, etc. In this society, sensitive types might flourish more readily because more people would be able to empathize and protect their interests. In fact, their sensitive constitutions might be the norm and acts of emotional abuse seen as far more morally abhorrent, harmful and requiring of remedy in that culture than ours.

Would the acts of harassing them been a graver injustice simply because there would be more people like the victims in these alternate societies than our normal society? The acts would be the same; the only thing that would change is the surrounding society and the proportion of people similar to the victims.

Alternatively, sometimes victims can turn the harm perpetrated immorally or illegally upon them into fortune. A victim of harassment might turn her experiences into a popular book and make millions of dollars while those in similar circumstances might linger and continue to suffer in anger, resentment and distress from their experiences. Whether they do so may depend on either the constitution of the victim or dumb luck. Still, how should we evaluate the degree of harms or damages done by the perps without appealing to such cultural and individual variable standards or history relative standards?

No comments:

Post a Comment