Suing for sexual violence
By Nikki Godden-Rasul
Green square with stylised taupe writing & graphics that says Nikki on Sueing for sexual violence.
Over the last 15 years in the UK, increasing numbers of sexual violence survivors have been suing institutions and individuals for compensation for the harm they have been caused (through a branch of law called tort). This has been a result of changes in law and practice, as well as greater public awareness of the possibility due to media attention. The Catholic Church. Care homes. The police. Donald Trump. Prince Andrew. Harvey Weinstein. The list goes on. But how helpful is tort law in addressing sexual violence? Does it enable meaningful accountability and redress? Can it be used in ways which challenge the conditions which enable such abuse?
Tort law typically recognises and best responds to the types of harms suffered by men (such as property damage and defamation). It often has not recognised the harms which are more commonly experienced by women and other marginalised groups, including sexual and racialised violence and institutional abuse. Through compensating some harms and not others, tort law contributes to constructing gendered, racial and other social hierarchies of lives. Historically, tort law enabled men to sue people who ‘damaged’ enslaved people (through injury and death) and women (through sexual violence) deemed to be their ‘property’. Broadly speaking, through its values, structures, processes and doctrines, tort law reflects and reinforces social, political, and economic orders which are bound up with gender, race, class and other hierarchical relations.
In spite of tort law’s ‘architecture of bias’, some feminist scholars and activists have argued that there is potential for tort law to be expanded to encompass and redress harms which more often and more greatly affect women and other marginalised people. While this can be important for some survivors to meet material needs and provide recognition for a wrong and harm, Martha Chamallas argues that it is not only a matter of individual compensation. It is connected to addressing systemic injustices because harm and violence are not equally inflicted and experienced, varying with intersecting forms of oppression.
However, even when tort law does increasingly enable claims for certain harms, this does not always translate into a significant impact on the ground. For example, in the UK, while there has been increased potential for successful sexual violence claims in tort law, compensation cases are only a practical reality for a small proportion of survivors. For most survivors, there won’t be an institution with insurance liability to claim against, and few individual wrongdoers are worth suing. Many law firms will take on such cases under no-win-no-fee agreements, meaning they will likely only take cases with a good chance of some compensation being secured. They are also unlikely to do much evidence gathering, beyond medical and psychiatric assessments, and often rely on police reports or investigations. As the majority of survivors do not, for good reason, report to the police, and those who do are over-represented by white heterosexual cis women, the civil system mirrors and reproduces these exclusions and hierarchies.
Looking at the civil system more broadly, it is a similar adversarial process to the criminal legal system, which, like law generally, tends to depoliticise social issues into isolated disputes, concealing systemic injustices. Even when there is a successful compensation claim against an institution, it is not normally that the institution has been held to be at fault. Instead, the institution is held ‘vicariously’ liable for the wrong perpetrated by an individual employee (or person in an employment-like relationship). Compensation is normally then paid by the institution’s insurance company, which means that there is no real recognition of the institutional cultures and practices which enable sexual violence. Nevertheless, it is possible that civil claims could encourage changes in policy and practice to attempt to prevent future harms, especially as this - or other measures - can be part of an agreed case outcome, these are few and far between. Generally speaking, there is no real evidence of tort law having a deterrent effect. Instead, the risks of harm and the costs are calculated largely through the insurance market, and decisions made as to whether it is most economical to insure against death and injury or run the risks of death and injury. Tort law operates to ‘dehumanize the response to misfortune, substituting money for compassion, arousing jealousy instead of sympathy and treating experience and love as commodities’.[1] The contemporary tort law system aligns with and is influenced by neoliberal ideologies and values.[2]
Incremental changes to tort law have little benefit for the majority of sexual violence survivors and further embed tort law as a primary response to harm, with no real accountability, meaningful redress or means to change the conditions which enable violence. But this does not mean that there is never potential for tort law to be of value for feminist abolitionists. What it does mean is that more careful strategic thinking about the use of tort law is needed, which should be done by ‘thinking through engagement with actual struggles’ and with social movement and community lawyering. The distinction between reformist reforms, those which entrench and expand harmful systems, and non-reformist reforms, those which reduce the power of oppressive systems can help as a guide. In addition, there are a number of different factors to take into account to shape decision making about the strategic use of tort law for abolitionist ends. Here, I provide three examples illustrating tort law being used in this way, and to what end (although not specifically in the context of sexual violence).
Critical Resistance (which aims to increase the international movement for penal abolition and challenge the underpinning structures of racism and capitalism to transform society) sued the California Department of Corrections to stop the construction of a new 5,000-plus bed prison. Regardless of the case outcome (which is not mentioned by the authors), the case received ‘unprecedented coverage of the irrationality and rank opportunism of prison construction’, making ‘California the national poster child for a disastrous “prisons not public works” policy and has generated a stateside rallying cry for schools, not jails’. It is not always the outcome that is significant, but the publicity and awareness raising a case can generate that can be important, and which can contribute to gaining movement allies.
In Mutua and Others v Foreign and Commonwealth Office [2012] EWHC 2678 surviving members of the Mau Mau resistance movement sought redress for detention, abuse and torture under the British colonial administration. The British government were compelled to reveal thousands of hidden historical documents. It also led to documents being uncovered showing similar patterns in other former colonies of the British Empire. Although the compensation settlement that was agreed was not financially significant and did not reach many potential claimants, the disclosed documents had a huge impact on public knowledge about the violence of the British Empire and its (formal) ends.
A final example are cases where tort litigation has led to other processes and policies. For instance, class actions in the US have led to dangerously defective products being removed from the market, including those which are gendered, such as intrauterine devices associated with reproductive injuries, high-absorbency tampons linked to toxic shock syndrome, oral contraceptives that caused kidney failures, and silicone-gel breast implants with a high rupture rate.
These examples show different reasons why tort law may be mobilised, not only to provide compensation for harm caused by wrongdoing. They also indicate some of the factors which should be taken into account to make decisions about when it is politically useful to use tort law. These factors are:
Legal outcomes: As changes in tort law will unlikely lead to transformative change, the outcome of a case or other legal action is not always that significant, and other factors may be more important.
Empowerment through process: Strategic use of law cannot only be focused on the end goals. Every day practices must relate to transformative ideals. Through legal processes and relationships between clients, social movement actors and lawyers, there needs to be alternative ways of relationship-building, communicating and decision-making where power dynamics are recognised and mitigated, and where there is attention to empowering those who are most marginalised, and building organized popular power.
Alliances and community power: engaging with law can provide allyship opportunities, mobilise grassroots campaigns, focus organising efforts and build alliances across struggles.
Publicity, education and awareness raising: law can be a powerful tool in increasing public education and awareness raising, although media attention also risks misrepresenting issues or drawing harmful public attention.
Framing and meaning making: Struggles over the production of ideas, meanings and knowledge play a significant role in social movements as well as in law, and framing social and political issues as legal wrongs and injustices can have both positive and negative effects which need to be considered.
The impact of law on a social movement: engaging with law can shape a social movements goals, values and priorities.
Backlash, counter-claims and co-optation: these are significant risks which very often play out in legal arenas.
Potential for new regulation, policies or other processes: strategic use of tort law can result in changes in other areas of law and policy.
Political and legal opportunity: the potential for legal action to achieve goals of a social movement will vary with changing political and legal contexts.
Resources: engaging with law is always costly, even if not always financially, it can be costly in terms of time, expertise, personnel, and good will. Those who are being sued, most likely a state institution or large, wealthy corporation will often be able to financially exhaust opponents.
Using tort law on its own terms – that is, to provide compensation for harm – does not do much to help address sexual violence. However, tort law can be used strategically, and for different ends, for social movement struggles to address sexual violence. To do so, the factors above should be considered, and it needs to be continually reevaluated whether using tort law in relation to a particular issue will delegitimise and take resources away from the systems of harm, keeping our horizons on social, political and economic transformation.
This piece is based on an article published in February 2025 in Social & Legal Studies
[1] Abel R (1990) A critique of torts. UCLA Law Review 37: 785-832.
[2] Morris A (2017) Tort and neo-liberalism. In Barker K, Fairweather K and Grantham R (eds) Private Law in the 21st Century. Hart, pp. 503-526.