George Menz
Content Warning: The following article discusses sexual assault.
The purpose of awards in tort law is to “make the victims whole.” With certain categories of offenses, this may never be truly possible. The aftereffects of sexual abuse can last for years, with severe consequences for the mental health of survivors.[1] Many survivors experience post-traumatic stress disorder, with flashbacks to the abuse triggered by, among other things, the sight or sound of the abuser.[2] When an abuser occupies a prominent position in society—when they’re a movie star or a pop singer—survivors find themselves facing potential triggers simply listening to the radio or walking past a billboard. Lawyers are not therapists. Many will admit that their bedside manner is flawed at best. But where harm has occurred, lawyers fill the role of ensuring that the distribution of resources flows from those who have caused harm to those who have suffered from it. If lawyers lack the professional training to help survivors heal from trauma, they can at least make sure that abusers don’t continue to benefit from a notable public profile.
A year and a half ago, the Illinois Supreme Court ruled that[3] one of the survivors of R. Kelly’s abuse was entitled to recover from the musician’s royalty account with priority over other creditors. Considering the high profile of the case and the horrific nature of the abuse, this result may be unsurprising. It is also not unprecedented. In the 1970s, what was retroactively called the Golden Age of Serial Murders,[4] serial killers like David Berkowitz (the “Son of Sam”) became media sensations. Legislators, alarmed that the perpetrators of these horrific deeds appeared to enjoy and potentially profit from the attention they received—and wary, perhaps, of copycats seeking similar opportunities through murder—passed so-called Son of Sam laws[5] which sought to limit the ability of criminals to profit from media representation of their acts and, if they participated in such activities (for instance, through publishing autobiographies), to redirect the profits from these ventures to the victims and families of the victims of their crimes.
In New York, the Son of Sam law originally required “an accused or convicted criminal's income from works describing his crime be deposited in an escrow account.”[6] When this law came up before the U.S. Supreme Court, it was struck down as overinclusive, raising concerns about both intellectual property rights and freedom of speech. The revised Son of Sam law currently in effect in New York is narrower. Rather than automatically redirecting funds from perpetrators to victims of crimes, the revised statute requires that victims be notified when perpetrators receive large sums of money and extends the statute of limitations for victims to bring suit against perpetrators—up to three years following, not the original crime, but the discovery of a perpetrator’s funds.[7] The revised statute reaches a compromise: while allowing courts and juries to exercise discretion in awards, it also gives survivors of crimes greater access to the court system as a means for seeking vindication.
Such legal mechanisms are ultimately only halfway measures. Community support and ongoing mental health care are essential for survivors. As a culture we should not stop examining our assumptions about how survivors should behave, or how passivity may benefit abusers. At the same time, the legal process at work displays a correspondence with the ongoing debate over how to deal with the work of “monstrous men.” Can we still enjoy the films of Roman Polanski or the songs of R. Kelly? The answer is different for every person; much depends on an individual’s personal level of comfort and preferences. But the moral calculus inevitably involves some consideration of the effects of consumption. If streaming an R. Kelly song means giving money to R. Kelly, many would opt for something else. But if it means giving money to the survivors of R. Kelly’s abuse, the factors involved may weigh quite differently. As legal scholars and practitioners, we should endeavor to establish methods by which moral intuitions and legal outcomes can converge.
[1] Lisa Speckhard Pasque, The Lingering Effects of Sexual Trauma, Mayo Clinic Press (June 7, 2023), https://mcpress.mayoclinic.org/women-health/lingering-effects-of-sexual-trauma/ [https://perma.cc/5NTG-47E8] [https://web.archive.org/web/20241008174621/https://mcpress.mayoclinic.org/women-health/lingering-effects-of-sexual-trauma/].
[2] Triggers: What Are They?, Saskatoon Sexual Assault & Info. Ctr., https://ssaic.ca/learning-resources/triggers-what-are-they/ [https://perma.cc/R2AC-MFSN] [https://web.archive.org/web/20241008200212/https://ssaic.ca/learning-resources/triggers-what-are-they/] (last visited on Oct. 8, 2024).
[3] Bill Donahue, R. Kelly Victim Granted First Dibs to Singer’s Sony Music Royalty Funds in Court Ruling, Billboard (Mar. 24, 2023), https://www.billboard.com/pro/r-kelly-victim-priority-sony-royalties-court-rules/ [https://perma.cc/N3DT-X2W5] [https://web.archive.org/web/20241009204302/https://www.billboard.com/pro/r-kelly-victim-priority-sony-royalties-court-rules/].
[4] Brenna Erlich, Why Were There So Many Serial Killers Between 1970 and 2000 — and Where Did They Go?, Rolling Stone (Feb. 10, 2021), https://www.rollingstone.com/culture/culture-features/serial-killers-1970s-2000s-murders-1121705/ [https://perma.cc/KEX6-SA9Q] .
[5] Sandra Thomas, Son of Sam Laws, Free Speech Cent. At Middle Tenn. State Uni. (last updated Jul. 19, 2024), https://firstamendment.mtsu.edu/article/son-of-sam-laws/ [https://perma.cc/Q9R3-9HVE].
[6] Simon & Schuster v. New York State Crime Victims Bd., 502 U.S. 105, 108 (1991).
[7] Understanding the New ‘Son of Sam’ Laws (Feb. 2002), https://www.prisonlegalnews.org/media/publications/understanding_the_new_son_of_sam_law_2002.pdf [https://perma.cc/CY88-X9VA].