Abstract
By connecting sociological perspectives on sympathy with the concept of ‘ideal victims’, this article examines how sympathy forms and informs legal thought and practices in relation to victim status in Swedish courts. In its broadest sense, sympathy can be understood as an understanding and care for someone else’s suffering and in many contexts victimization and sympathy are densely entangled. However, since ideals of objectivity and neutrality prevail in court, emotional norms are narrow and sympathy is met with suspicion. Drawing on ethnographic fieldwork conducted in Swedish courts, I argue that while sympathetic feelings are mostly backgrounded, they are still a central part of court proceedings and deliberations. The main findings suggest that prosecutors and victims’ counsel use ‘sympathy cues’ to evoke the judges’ concern for the complainants and to facilitate their empathic imagination of the complainant’s situation. In relation to this finding, judges engage in emotion work in order to not be affected by these sympathy cues. The study also shows that in encounters with ‘ideal victims’ who perform a playful resistance to their victimization, legal actors show sympathy more freely and accept moments of temporary relief from the normal interaction order in court.
Introduction
The judicial ideals of objectivity and impartiality are closely associated with dispassion (Maroney, 2011) and there are few professional arenas in which the ideological division between rationality and emotion is today as profound and robust as in the legal arena. Within the growing field of law and emotion, empathy has been discussed as involving a risk for bias (Abrams, 2010; Bandes, 2009; Nussbaum, 1996). However, many scholars in this field have shown how empathy enhances objectivity and professionalism among legal actors (Bandes, 2009; Roach et al., 2005; Westaby and Jones, 2018; Wettergren and Bergman Blix, 2016). Among other things, empathy is considered to be crucial both when assessing and when anticipating people’s acts and rationales and when managing one’s own and others’ emotions in court (Wettergren and Bergman Blix, 2016). Although intrinsically linked to empathy, sympathy seems to adopt a more haunting shape in relation to the way legal actors and researchers understand how it affects legal thought and practices. While Henderson (1987: 1584) describes sympathy as inherently inappropriate to the legal context, ‘a flood of feeling’, I will argue that sympathy is better understood as a light drizzle, backgrounded but evanescently present. As this paper will show, sympathy can assume multifaceted meanings in the legal context: as promoting involvement, and as affecting evaluations of victim status, thus threatening impartiality and professionalism. The main aim of this article is to explore the forms and flows of sympathy in court by investigating how victim status invokes care and concern among legal actors.
Drawing on ethnographic data from an ongoing research project in Sweden, including observations from court hearings and judges’ deliberations as well as shadowing and interviews with judges and prosecutors, I have chosen to analyze three cases involving victims who to a varying extent meet the criteria for ‘ideal victims’ (Christie, 1986) in more depth. To further our understanding of the practical use of sympathy in court interactions, I develop the concept of ‘sympathy cues’. Expanding on Clark’s (1997) idea of cues as invitations for specific emotions, in the legal context sympathy cues refer to information about the complainants or about their relationship to the defendant that strengthens their victim status. Thus, a sympathy cue emphasizes victims’ vulnerabilities, their ‘irreproachability’, or highlights the power imbalance between the victim and the perpetrator. Using different means, prosecutors, victims’ counsels and defense lawyers aim at evoking sympathy for their client among the judges. Sympathy cues may be used both to make another legal party feel for a victim or perpetrator and to make them feel with them. Using sympathy cues to enable feelings for one party would prompt ways of caring for that person and her or his plight. Sympathy cues that aid feeling with the same person would instead elicit empathic imagination and perspective-taking. As a concept, sympathy cues can highlight how empathy and sympathy work in tandem in legal contexts, thus contrasting with an understanding whereby empathic imagination is viewed as advancing legal thinking while sympathy flows are seen as impeding these same processes.
In a similar way to developments in other countries, the needs of and sympathy for crime victims have become a prominent part of the political discourse on crime and punishment in Sweden (Hermansson, 2019). At times when increasing public and political demands to enhance victim participation in the criminal justice process are interpreted as an emotionalization of law and its processes (Karstedt, 2002; see also Garland, 2001), directing closer scrutiny at the appeals to sympathy and victim status found in criminal court proceedings may provide a vital contribution to critical victimology as well as the field of law and emotion. Involving a focus on practices of care and concern, studies of sympathy in the legal setting hold the potential to raise questions about how to serve the well-being of and provide redress to victims as well as noting possible biases and unwarranted differences between victims with different statuses. 1
A short note on the Swedish legal context
The legal system in Sweden follows a civil law system based on statutory laws and a legal code. The mixture of both inquisitorial and adversarial features that characterizes the criminal justice process is sometimes referred to as Scandinavian law or Nordic continental law (Flower, 2020). The inquisitorial aspects are more prominent during the pre-trial phase, while the trial itself is more adversarial (Bergman Blix and Wettergren, 2018). The main hearing in court rests on two central principles, the principle of orality and the principle of immediacy. These principles mean that all evidence should be presented orally and that the legal judgment relies heavily on the material that has been presented orally in the courtroom.
The main actors in a criminal trial are the judge, the lay judges, the prosecutor, the defense lawyer and sometimes a victim’s counsel, along with the complainant, defendant and the witnesses. The role of the presiding judge is to ensure that the court procedure is correct and to clarify the case in a proper manner, and thus compared with other legal systems the judge has a rather passive role (Bergman Blix and Wettergren, 2018). The lay judges are mandated for four years and are appointed by political parties via the municipal councils that are included in the judicial district of each district court. 2 After the main court hearing, the judge and the lay judges deliberate together and decide on both the verdict and sentence. Thus, in contrast to legal systems that involve jury trials, the deliberation in Sweden is always guided by a legally trained judge. The prosecutor represents the state and has an active role during the main hearing; the prosecutor presents the case and evidence, and conducts a direct examination of the complainant and witnesses and cross-examines the defendant. In the court proceedings, as well as during the preliminary investigation, the prosecutor adheres to the principle of impartiality, which entails an obligation to take into account and present evidence that might exonerate the defendant. The main objective of defense lawyers is to safeguard their clients’ interests and critically evaluate the evidence presented by the prosecutor (Flower, 2020).
In Sweden, the injured party is called the målsägande, literally meaning ‘owner of the case’. Compared to many other legal systems, including some other Scandinavian countries, the legal status and rights of victims have historically been strong in Sweden (Antonsdottir, 2020). While the injured party in many other jurisdictions has the legal status of a witness, in the Swedish system the injured party is included as a party (Zila, 2006). While remaining objective, the prosecutor also has an obligation to protect the interests of the victim – for example, to bring an action for damages on behalf of the victim. In more severe cases, where the victim has been subjected to offenses that can lead to incarceration for the defendant, the injured party has the right to have a victim’s counsel. A victim’s counsel is a lawyer who will help and support the victim during the preliminary investigation and trial.
There are three different levels of courts that process criminal cases in Sweden: the district courts, the court of appeal and the Supreme Court. In the first instance, the district court, cases are adjudicated by one legally qualified judge and three lay judges. In the appellate court, there are three professional judges and two lay judges. In Sweden, the appellate court adjudicates on both legal issues and evidentiary matters. Since a reform in 2008, all district court trials are video-recorded, and, as a principal rule, the appellate court will make use of these video recordings and refrain from having testimony presented in the form of direct and cross-examination in the courtroom. 3
Conceptualizing sympathy as a caring and relational quality
The terminology of emotion is slippery (Bandes, 2017) and the concepts of sympathy, empathy and compassion are especially so, since their meanings have changed over time and vary both between and within disciplines. 4 Several scholars have shown how sympathy and empathy are often conflated or confused (Coplan, 2011; Cuff et al., 2016; Debes, 2015; Wispé, 1986). While acknowledging that the literature on these concepts is vast, I will in this context limit my discussion to the distinctions that are necessary for the purposes of this article.
According to the Cambridge Dictionary, sympathy is defined as ‘(an expression of) understanding and care for someone else’s suffering’ and in its broadest sense sympathy refers to ways of relating to people experiencing some kind of hardship. Discussing the differences between sympathy and empathy, Wispé (1986) argues that while the object of sympathy is the other person’s well-being, the object of empathy is to understand the other person. Conceptually, sympathy captures a ‘heightened awareness of the suffering of another as something to be alleviated’ (Wispé, 1986: 318) and links to an increased sensitivity to the emotions of the other person and an urge to engage in mitigating actions. Empathy, on the other hand, refers to an ability to adopt the perspective of another person, which involves an imaginative process of understanding what the other person feels in a certain situation. Empathy and perspective-taking are seen as a prerequisite for sympathy (Clark, 1997; Del Mar, 2017). Crucially, sympathy draws on the empathic understanding of another’s situation but extends this understanding by evaluating it (Del Mar, 2017: 144). Sympathy is commonly categorized as a moral emotion (Gray and Wegner, 2011; Rudolph and Tscharaktschiew, 2014), meaning that sympathy involves categorizations and evaluations of actions (help/harm) and people (agent/patient) (Gray and Wegner, 2011). Empathy implies a knowing of the other person’s experience 5 but does not necessarily include taking any stance on, or caring for, that person or his or her emotions. In sympathy, care is central and we experience someone else’s plight as mattering categorically because we experience that person as mattering (Darwall, 1998: 275). Drawing on these ideas, in this article I define sympathy as a synthesis of empathic imagination and caring for people in some kind of difficult situation (cf. Debes, 2015).
In Misery and Company, the American sociologist Candace Clark (1997) presents an extensive exploration of the norms of giving and receiving sympathy. Clark (1997) describes sympathy as a complex feeling that may vary in composition and intensity. Arguing that sympathetic sentiments always involve a concern for another person, she also shows how sympathy compounds other-oriented emotions that correspond specifically with someone else’s hurt, anguish or worry. According to Clark (1987, 1997), sympathy is a social emotion in several ways: it creates social bonds, it regulates social order and it involves a set of feeling rules for different interactions. Another social aspect of sympathy which Clark (1987, 1997) stresses is that receiving sympathy reifies the receiver’s moral worth and social status. Consequently, giving sympathy affects the social status of the sympathizer, enhancing their ‘niceness’ but also increasing their ‘softness’. Considering these aspects, sympathy involves benevolence and some kind of benign affinity. Importantly, the power asymmetry that sympathy implies can also be used to belittle the recipient of sympathy and to throw them off balance (Clark, 1997: 249–250).
Sympathy as a backgrounded emotion in the Swedish legal context
While sympathy and victimhood are densely entangled in many contexts and situations (Christie, 1986; Clark, 1987; Kolb, 2011; Van Dijk, 2009), previous research in Sweden shows that while empathy may be viewed as a professional asset by legal actors (Flower, 2020; Wettergren and Bergman Blix, 2016), expressing sympathy as a judge or prosecutor for either party in the criminal justice process is seen as engaging in an ethically suspect kind of role-taking or as giving up one’s objective, critical stance (Bergman Blix and Wettergren, 2019; Dahlberg, 2009; Törnqvist, 2017). The abnegation of sympathy is also apparent in formal documents from Swedish legal institutions. In ‘Good judicial practice’, a guidance document published by the Swedish National Courts Administration (2013), the following question is posed to engage judges in discussions about ethical dilemmas and problems they may encounter in their everyday work: ‘Can I demonstrate empathy for a party without it being misunderstood as biased sympathy?’ Within the context of the criminal justice process, felt or shown sympathetic feelings toward victims are therefore best understood as ‘sticky’ (Ahmed, 2004). The concept of sticky emotions relies on ideas of attachment and contingency, with such emotions creating ‘sites of personal and social tension’ (Ahmed, 2004: 11). The stickiness of sympathy comprises a form of moral and emotional relationality between the sympathizer and the recipient of sympathy that challenges the prevailing idea of legal objectivity.
This normative stance on sympathy raises questions about what role, if any, sympathy plays in criminal legal processes. In this article, I address this question by placing Christie’s (1986) concept of the ‘ideal victim’ in dialogue with different theoretical frameworks of emotions. One of my main arguments is that emotions of sympathy are primarily backgrounded in the legal context but still compose an important aspect of the ways in which criminal justice processes unfold. Backgrounded emotions can be understood as emotional experiences that occur below the conscious awareness of the emoting subject (Barbalet, 2009, 2011). Even though the emotions in motion do not become an object of cognitive reflection, they still orient the emoting subject towards external objects in certain ways (Wettergren, 2019). In contrast to foregrounded emotions, backgrounded emotions are calm and non-disruptive, since they harmonize with the expectations and actions taken in a certain situation. Wettergren (2019) elaborates on backgrounded and foregrounded emotions in relation to the conduciveness of emotions to specific tasks. While emotions that are conducive to an ongoing action usually do not require any reflection and can be perceived as a rational state, emotions that arise out of conflicts with our intended goals, and that direct us to another action, become the center of our attention and are commonly seen as an affective state.
Through the work of victims’ movements and a deeper knowledge about victims’ experiences, concern for the well-being of victims has become more prominent in the work of legal actors (Lindgren et al., 2001). Thus, sympathy has become increasingly integral to the criminal justice process via an institutionalized interest in victims’ rights. 6 With regard to Barbalet’s (2009, 2011) theoretical framework of foregrounded and backgrounded emotions, sympathy proceeds from the legal actors’ cognitive and emotional evaluations of a person’s needs in a difficult situation, such as their vulnerable situation in court, but also as a result of the severity of the crime itself. As a backgrounded emotion, sympathy generally orients legal actors toward the victim’s perspective and stresses a responsibility to relate to complainants with care and concern for their well-being. Concern for complainants, as well as the defendants and other parties in a trial, is conducive to respectful treatment. Against the backdrop of increased knowledge about secondary victimization, concern is also elementary to a legal process that should not expose the complainant to unnecessary stress or strain. When directed in this way, sympathetic feelings can remain backgrounded and calm. In situations where sympathy becomes foregrounded – for instance, when feeling overwhelmed by sadness or disgust upon hearing a victim’s story – sympathy creates an ambivalence in relation to the legal actors’ moral attachments to the people they meet in court. As a foregrounded and disruptive emotion, sympathy demands conscious emotion work in order to maintain a presentation of self that fits the prevailing emotional regime and its associated feeling and display rules (Hoschschild, 1983). Since my aim in this article is to explore the ways in which sympathy flows are linked to victim status in court proceedings and deliberations, the following section will briefly touch upon the concept of the ‘ideal victim’.
Ideal victims and sympathy brokers in court
The concept of the ‘ideal victim’ was developed by the Norwegian criminologist Nils Christie and refers to a person, or perhaps even more so to a category of individuals, who is most readily ascribed the complete and legitimate status of being a victim when exposed to crime (Christie, 1986). According to Christie, being a victim is not an ‘objective phenomenon’ but an effect of how a situation is socially defined. There are five general characteristics of the ‘ideal victim’; the victim is weak, and involved in a respectable activity, in a legitimate place; the perpetrator is unknown to the victim and is superior to the victim in some sense. Additionally, Christie notes that it is important that the victim has enough influence to claim ‘victim status’ in order to be acknowledged as a victim. As Christie and other many scholars have shown, there are few real crime victims who meet the criteria for the ‘ideal victim’ (Best, 1997; Christie, 1986; Walklate, 2007). Other research has shown that for many people who have been victimized, being seen as a victim is not necessarily an attractive, ‘ideal’ status but rather quite the opposite (Åkerström, 2001; Burcar, 2005; Fohring, 2018; Jägervi, 2014; Randall, 2004). Taking these notions into account, I argue that victimhood encompasses a continuum of ‘idealness’, along which people who have been victimized can be placed, and place themselves. Instead of talking about ‘ideal’ and ‘non-ideal’ victims on the basis of Christie’s (1986) concept, I would suggest that it is more beneficial for the purposes of analytical vigor to explore the specific meanings of these criteria and their dynamics in specific cases. By adding a theoretical framework of emotions, such as Clark’s (1987, 1997) and Barbalet’s (2009, 2011), the analytical reach of the ‘ideal victim’ concept is expanded and deepened.
As stated earlier, sympathy is an emotional response to the plight of others, especially those whose unfortunate situation is unwarranted (Clark, 1987, 1997). In a similar vein, the concept of ‘ideal victims’ stresses the ways in which the victimization is unfair and unjustified and how the victim is not to blame for the incident. Emphasizing the vulnerabilities of victims and the power asymmetry between them and the perpetrators functions to idealize victims and make them more worthy of sympathy. Relating the concept of ‘ideal victims’ to Clark’s discussion on sympathy, I would argue that the more ‘ideal’ victims are considered to be, the greater the sympathy margin they will be granted by society and, by extension, legal actors. Clark’s concept of the sympathy margin builds on a banking analogy, where the idea is that membership in a group generates a ‘certain number of sympathy credits’ (1987: 301) which we can ‘cash in’ when needed. Sympathy margins change continuously, and may increase, decrease, be replenished or even used up, depending on how we adhere to emotion rules (302). Claims for sympathy can be made not only by the suffering persons themselves; ‘sympathy brokers’ may call attention to someone else’s plight and function as intermediaries between the potential recipients of sympathy and the sympathizers. Emphasizing their clients’ ‘troubled past’ or good intentions, Clark (1997: 195–196) shows how defense lawyers acting as sympathy brokers can influence sentencing decisions.
Using Clark’s analytical framework, sympathy margins can be seen as being negotiated throughout the criminal legal process. Attributions of responsibility and blame are important aspects of the evaluation of the criminal offense and several studies have shown that victims’ status and cooperation influence all stages of the criminal justice process, from police investigations (Hawk and Dabney, 2014; Randall, 2004) to court proceedings (Nafstad, 2019; Rose et al., 2006). In exploring legal evaluations of victim narratives, Kusenbach and Loseke (2013: 26) refer to trials as ‘sympathy contests’ in which complainants seek to be perceived as moral persons worthy of receiving help from society. At the societal level, judges, prosecutors, police officers and other decision makers in the criminal justice system may be understood as sympathy gatekeepers. Through their work, they play a significant role in who is and who is not acknowledged as a victim in society.
Methods and material
The study is based on ethnographic fieldwork that includes observations of court hearings and judges’ deliberations, the shadowing and interviewing of prosecutors and professional judges, and written legal documents such as indictments and court judgments. The fieldwork was conducted in Swedish courts in 2017 and 2018. It is part of a larger, ongoing research project on objectivity, emotions and legal decision making. Focusing on three types of crime – fraud, murder and intimate partner violence 7 – the objective of the research project is to investigate the emotive-cognitive situated process of legal decision making, and the project aims to further theoretical knowledge about the role of emotions in this process. The project follows ethical guidelines for research and has been approved by the Swedish Ethical Review Authority. To ensure confidentiality, details of the cases and the participants have been changed in order to avoid identification.
For this article, I have chosen three cases that I have observed in court. These cases were chosen because they all involve victims who may in some ways be considered ‘ideal victims’. Although they vary in their ‘idealness’ in important ways (this is discussed in more detail in the next section), I argue that their specific ‘weaknesses’ (old age, cognitive disability and being broken due to a longer period of intimate partner violence) include all of them within the remit of the notion of ‘ideal victims’. Secondly, these cases were chosen because sympathy was expressed directly on several occasions in a way that it was not in the excluded cases. In order to study sympathy in a professional setting that silences emotions (Bergman Blix and Wettergren, 2018; Dahlberg, 2009; Flower, 2018), and where sympathy is among the more silenced of these, choosing cases with ideal victims, who would arguably evoke more sympathy in general, makes analysis of the forms and flows of sympathy in court more feasible. The different cases offer deeper insights into given situations in the criminal justice process and how the involved legal parties interpret these situations, in a way similar to a case study approach (Merriam, 1994). In this analysis, the benefits of ‘thick descriptions’ (Geertz, 1973) that can be made on the basis of a few, carefully chosen cases exceed the benefits of wider comparisons made on the basis of 10 cases or more. As is the case given the latent promise of qualitative data in general, the richness of particular cases can be used to develop our understanding of the specifics of more general structures and social processes.
Before going into the cases, I will address some important limitations. In both fieldwork and interviews, one is as a researcher left to rely on one’s own ability to understand and capture the situation in words (Arvastson and Ehn, 2009; Davies, 2008). This understanding stresses the importance of sensitivity and knowledge of the field, and researchers of emotion in Swedish courts have emphasized that the emotional context only appears once one has observed several court trials (Bergman Blix and Wettergren, 2018; Flower, 2018). Thus, studying emotional displays and cues in courts requires a lot of practice and experience. The three cases I analyze here are among the first court proceedings I followed, which means that my ‘ethnographic gaze’ was hampered by novelty and unfamiliarity. For me as an ‘outsider’, small talk and interviews with the legal actors have been crucial in order to obtain a better understanding of ‘what was going on’, and to advance my understanding of both the data and possible paths of analysis. Despite, or perhaps because of, my alien position in the field, different displays of sympathy emerged very clearly during different episodes in the selected trials. Still, it is important to bear in mind that this article focuses on victims who are in some sense ‘ideal’. It is possible that other forms and flows of sympathy would have come to the fore in court proceedings in which the victims were less readily ascribed a victim status. Consequently, the knowledge produced in a study like this is not statistically generalizable, but the theoretical framework and concepts may be transferable to other situations and contexts in which sympathy and victim status are central.
The cases
The analysis in this study is centered on three court cases concerning fraud, attempted murder, and intimate partner violence. In this section, I will present the cases briefly and discuss how they vary in terms of ‘idealness’, yet all have characteristics that meet some of Christie’s (1986) criteria for ‘ideal victims’.
The first case concerns aggravated fraud. It involves over 40 victims, mostly elderly women living on their own. As the case was presented in court, the modus of the criminal act was similar in each offense. The perpetrator had visited the victims in their homes, saying that a data virus had affected their credit cards and that he would help them get a new credit card if they gave him their current card and code. The perpetrator was a middle-aged man with a long history of criminal activity and incarceration. The victims in this case are ideal in several ways; besides gender, their victim status is intensely linked to being vulnerable through old age and health problems, but also through having a kind-hearted, naive trust in social institutions and strangers. Asked about his feelings in this particular case, the prosecutor answered: Then it’s extremely important; these are elderly, aging people he is swindling, and they are completely like defenseless…Often live in rural areas where the door is left open and you want to like live in peace and quiet. So I thought that these were important crimes to prosecute in that sense.
The second case is one of attempted murder. The victim, Sakarias, 8 was a man in his mid-twenties with learning disabilities, autism and some mental health problems. The first time I talked with the prosecutor, she summed up the case by saying that ‘he is of course a person with low intellectual functioning, whom these two gangs have taken advantage of’. She added that the two main investigators from the police felt really sorry for him and that Sakarias ‘evoked emotions as if he had been a little child, and in some ways maybe he mentally is’. There were several events leading up to the criminal offense, in which the victim had been shot in a raw, ‘gangster’ style. However, the main motive the prosecutor presented for the shooting in court was that the victim had been blamed for a failed drug deal, which had also resulted in a life-threatening, aggravated assault and a loss of narcotics for the main perpetrator in the shooting. Applying the characteristics of an ideal victim, Sakarias can be described as weak because of his cognitive difficulties and credulity. As Christie (1986) has argued, the ideal victim ‘needs’ an ideal perpetrator and in this case the perpetrators, Assim and Jovan, may be described as being particularly mean, having taken advantage of Sakarias’ vulnerable situation. Importantly, Sakarias’ victim status can be questioned according to Christie’s criteria, since he knew the perpetrators and was involved in criminal activities, mostly using cannabis. However, taking into account the fact that Sakarias, even in court, talked about the two perpetrators as his friends and that he, on the day of the shooting, had gone to resolve the conflicts that had recently arisen between them, which might be viewed as a respectable activity, there were factors that might serve to nuance his victim status more towards that of an ideal victim.
The third case is a court case involving repeated intimate partner violence. The victim, Isa, was a woman in her forties. The prosecution focused on seven different occasions during a six-month period when Isa’s male partner had physically assaulted her and inflicted damage on her apartment. When the three professional judges in the appellate court were shadowed and interviewed, this case was talked about as a ‘typical’ case of intimate partner violence. In recounting Isa’s statements, the written judgment from the district court stated that ‘[s]he felt terribly bad during the period that the indictment relates to. She has not felt safe and has hardly been able to speak to anyone on the telephone.’ During the trial Isa was hesitant, wanted to retract the statements she had made to the police and expressed a great deal of affection toward the defendant. While Christie (1986) notes that victims of intimate partner violence may not readily appear as ‘ideal’, he also concludes that they have a potential to reach this status through a discursive turn in how this violence is talked about and understood. Arguably, the patterns of coercive control (Stark, 2009) that Isa was shown to have experienced involve being weakened and highlight the power imbalance between her and her partner. I am arguing that this framework makes her an ‘ideal victim’ in many ways. Since 1986 when Christie wrote his article, intimate partner violence has become a highly politicized and mediatized crime and is today associated with an imagery of vulnerability of its own. Fueled by discourses of ‘battered woman syndrome’ and ‘uncooperative victims’, this imagery sometimes elicits sympathy and understanding, but is sometimes an obstacle to access justice for assaulted women (Randall, 2004; see also Kolb, 2011). Among the ambiguities relating to Isa’s victim status and sympathy margins are the aspects of her ‘going back’ to her partner, her reluctance to participate in the legal process and, although she was acquitted of the charge, she was herself being prosecuted for having hit her partner with a croquet mallet on one occasion.
All three cases led to convictions for the offenders in both district and appellate courts. While the victims’ testimonies were considered central to the judicial decisions, there was also extensive additional evidence in support of the prosecutions. However, conflicting narratives characterize many legal cases and this is also true for the cases described here. While the defendants in the attempted murder case denied any involvement in the shooting and for the most part remained silent, the suspect in the fraud case admitted to a large proportion of the alleged offenses, although he did not remember them. In the intimate partner violence case the defendant, although he remembered some of the situations and admitted some of the acts, denied any intent and pleaded not guilty.
Results
A sticky need – the importance of temporality, balance and confidence for expressing sympathy
As described earlier, sympathy involves both threat and promise in relation to legal actors’ professional identities and actions. While a certain amount of care and concern can propel an individual into engagement and empathic listening, with too much sympathy an individual risks becoming biased and simplistic. The following quote from a judge in an appellate court can illustrate how sympathy is carefully carved into the legal actors’ experiences of the criminal justice process:
Q: How did you feel when the deliberations were over? What feeling did you have when you went from the [deliberation] room and back to the office?
Hmmm, I felt that…a certain relief about the fact that I felt so secure about the decision I had made . […] And immediately thereafter…a minor need to say something about these people on a human level. […] From having been structured and objective and concrete and analytical, I feel a need to allow myself also to feel sorry for her and feel sorry for him and to think it is tragic, this situation.
This judge, who was interviewed after the court hearing in Isa’s case, is here performing a tight, professional script of how sympathy can be felt, managed and displayed in a legal context. By stressing the need to be sympathetic towards the involved parties, the judge connects with general, societal sympathy rules, shielding himself from becoming, or being perceived as, cynical and callous. Yet there is no risk-taking from a professional standpoint; the sympathetic feelings are both temporarily and cognitively ordered as an after. Feeling sorry for the victim and the offender is something you as a legal professional can allow yourself to do in a situation in which you are confident in your legal decision, a decision you made by being ‘structured and objective and concrete and analytical’. This last phrase can be interpreted as an ‘incantation of objectivity’ (Jacobsson, 2008), making expressions that lack judicial relevance safe. In addition, the ability to divide sympathies between the two parties may be viewed as a professional assurance of impartiality.
Expressing sympathetic feelings with the embodied ease (Bourdieu, 1986), as the judge does in the above quote, is most likely a result of a prolonged habituation into the emotional regime of the criminal justice system and the prevailing regulatory techniques for managing different emotions. In the Swedish context, the process of (emotional) habituation into the (unemotional) legal field is extensive for both judges and prosecutors, and involves several years of professional training (Bergman Blix and Wettergren, 2018), starting as early as in law school (Flower, 2014). Importantly, the judge in this case becomes aware of the need to feel for the involved parties after the decision has been made, suggesting that sympathy has been backgrounded during the trial but becomes foregrounded when it is time to leave the case behind. As Wettergren (2019) convincingly argues, not only emotions but also emotion work (i.e. practices focused on feeling the appropriate feeling according to emotion norms) can be backgrounded and orient us toward what is and is not able to be felt in specific settings. This example thus shows the strong normative prescription for not showing or feeling sympathy during court proceedings, especially for judges. While a ‘stoneface’ is the most common appearance expressed by legal professionals in Swedish courts (Bergman Blix and Wettergren, 2018; Flower, 2020), the following sections will focus on situations in which sympathy for victims is either aimed for or displayed by legal actors during criminal trials and deliberations.
Vivid evidence and other means by which sympathy brokers may release sympathy flows
Emotions constitute an integral part of criminal trials (Johansen, 2019) and my claim in this article is that sympathy plays a role in court proceedings, although mostly as a backgrounded ‘drizzle’ that steers the fact-finding interest and memory in habitual ways via care and concern. One empirical argument for the pervasiveness of sympathy within the criminal justice process is linked to the common tacit knowledge among prosecutors and defense lawyers that some types of evidence evoke sympathetic feelings among judges, and that this affects the trial and its outcome. This knowledge stands in contrast to the idea that sympathy plays no role in court proceedings or decision making, and most judges would dispute the idea of them being affected by sympathy in any way. A prosecutor whom I interviewed in one of the other cases of intimate partner violence in this study said: On the few occasions that we have something on film, for example, it plays a very important role…Being able to play back an emergency call when something has just happened to someone and they ring and are in panic. That of course is incredibly valuable evidence. But of course these are real emotional…allusions.
This finding is in line with previous research which has shown that various means that make it possible for judges and other legal decision makers to ‘relive’ the criminal event are important for the outcome of a trial (Bens, 2018; Laugerud, 2020). Discussing the impact of gruesome photos and victim impact statements on decision making in the American legal context, Bandes and Salerno (2014) argue that these types of evidence often evoke anger and sympathy, and constitute powerful means for prosecutors and defense lawyers to persuade judges. The emotional reaction to this kind of evidence can intensify the concern for the victim, which may involve a risk for biased adjudication while also avoiding routine understandings of a certain type of criminal offense. The word ‘but’ and hesitant pauses in the quote above are of central importance to understanding the normative stance on the use of sympathy cues in the legal context, which is that using emotionally sticky evidence is regarded as a ‘dirty trick’ that challenges the idea of professionalism and legal rationality. In addition, talking about ‘allusions’ discursively suggests that the emotions at play are difficult to verbalize and should be implicit.
Compared with forensic evidence, oral testimonies are received with greater skepticism due to common memory deficiencies, yet their power to release sympathy relies on their narrative structure. Narratives are a powerful means of conveying meaning and infusing emotion (Bruner, 1991; Presser and Sandberg, 2015) and they compel us to imagine what we would feel in a given character’s place. Each of the cases in this study has its own narrative moments that evoke sympathy and invite additional empathic imagination. In the intimate partner violence case, a friend of Isa says in her testimony that ‘after that incident, Isa wanted me to have a safe word, so she could text me and I’d call her and then the police if I got it’. During the judges’ deliberation, Isa was viewed as very credible and the judges found that all the changes in her account of the criminal offenses had been explained in satisfying ways. One of the lay judges emphasized the importance of the friend’s testimony and stressed that having had a safe word showed that things had probably been even worse than they had come to learn at trial. This sequence shows how witnesses can act as sympathy brokers and it provides an example of the way that some information about the victim’s situation sticks in the judges’ memories and elicits an empathic imagination of what is not directly known from the trial. Importantly, while the friend’s testimony bolstered the strength of the charge as third-party evidence, the information about a ‘safe word’ also increased Isa’s victim status by attesting to her vulnerability and contributed to a greater concern for her.
Another example of the way in which sympathy cues can capture judges’ attention and structure memory can be seen in the fraud case. Since it involved over 40 complainants, certain information that they provided during their testimony became a way for the judge and lay judges to distinguish them from one another. This could be ‘the one baking for Christmas’ or ‘the one who said she should have listened to her dog, which did not like the perpetrator’. In many cases, the image that these pieces of information evokes resembles the ideal victim in that it highlights the good nature of the victims and their innocent character.
Opening and closing argument as spaces for sympathy flows
Court proceedings follow a highly ritualized order, which provides different spaces for legal actors to make sympathy cues at the different stages of the trial. In the opening and closing arguments, the legal actors have more control over the narrative of their case and can choose which aspects they want to highlight. Drawing on the attempted murder case, I will address two occasions on which the prosecutor acted as a sympathy broker and used sympathy cues to emphasize the vulnerability of the complainant.
At the end of her opening statement, the prosecutor slowed her speech and paused briefly before saying that ‘the complainant has low intellectual functioning and some degree of autism’ and that she wanted ‘to inform [the court] about this before he was to be heard’. 9 In making this statement, she spoke in a lingering, serious voice. With a slightly lightened tone, as if to affirm her unpretentiousness, she continued by saying that she thought that it might be good to know this when he was heard. The cognitive (dis)ability of the complainant was never described thoroughly by any of the legal actors during the trial, but only hinted at, making it an effective resource for both claiming and refuting victim status. Here the prosecutor used it to create a frame for empathic listening by the court. While empathy is needed to anticipate the discomfort and other difficulties complainants may face when talking in court, an understanding of the victims’ situation in court can also increase their sympathy margin and instill corresponding emotions such as patience and attentiveness in the legal actors. In this sense, prosecutors, victims’ counsels and defense lawyers can strategically prompt sympathy cues to make the judges care for complainants in ways that are relevant to their needs. Thus, sympathy can be used in a similar way to that in which legal actors make deliberate use of empathy to reach an intended goal (Wettergren and Bergman Blix, 2016: 22), in this example in order to have the complainant heard on his own terms.
In her closing statements in both the district court and the appellate court, the prosecutor highlighted the vulnerable position of Sakarias in another way. She used a PowerPoint that included a slide showing a text message from one of the two defendants to a third defendant (who was involved in the case but not in the attempted murder). The text said ‘I tld a that he should only touch the imbecile’. Most of the evidence she had gone through up to this point had been rather technical, involving timestamps for phone calls and connections to different phone masts. In contrast, this text message presents personal information about the involved parties, their dynamic as a group of friends and the low status Sakarias had. The text message can be seen as a sympathy cue in itself, based on the strong emotional connotations of a label such as ‘the imbecile’. Compared with the other text messages that were also included in evidence, the prosecutor notably placed more emphasis on this message by using voice strength and pauses. The text message had originally been misspelled but the presiding judge in the appellate court noticed that it was not misspelled on the slide and made a remark about this. I thought this ‘reprimand’ would create some unease for the prosecutor but afterwards, when I asked her about it, she had been happy about it, seeing it as a sign that the judge was ‘on track’. 10 This was the only remark made by the judge during the prosecutor’s closing argument. While the interference may be interpreted as a principled act intended to correct something that was wrong, it may also show that this text message ‘moved’ the judge, or at least generated in him a specific interest as the prosecutor had intended.
The emotional strength of this particular text message is also evident in the fact that the victim’s counsel also used it in his closing argument, stating that ‘I was struck by the same text message as the prosecutor’ and pointing to how ill-intentioned and appalling the offense was. He further emphasized how the perpetrators let the victim know these would be the last moments of his life immediately before shooting him. These sympathy cues mainly focus on the blameworthiness of the perpetrators, rather than framing Sakarias as an ideal victim. However, by stressing the evilness of the perpetrators, Sakarias’s victim status increases, since he appears to be in a very exposed and vulnerable position (cf. Christie, 1986). As a parallel, in the closing argument in the fraud case, the prosecutor argued that the offenses were of a ‘particularly dangerous kind’ and continued: ‘I want the court to think about these crime victims. This is a group who find it very difficult to protect themselves; it’s a rural area, the door is left open, you assume that people wish you well.’ In this statement, the sympathy cue frames the innocence of the victims and their victim status as a foil to the seriousness of the crimes. At the end of this line of argument, the prosecutor stated that ‘during our days in court we have listened to people who have broken into tears, who no longer want to go out, who are incredibly unwell’. By highlighting the severity of the crime and its consequences, he raised awareness about the victims’ current situation and sought to increase their victim status and sympathy margin by means of these cues.
Balancing out sympathy and other ways of invoking counter-moods
The strategic use of sympathy cues in order to ‘move’ the judge and lay judges has different effects depending on the situational context. The judges in this study appeared to be aware of the strategy and to have different ways of keeping sympathetic emotions at bay. On the first day in court in the fraud case, in one of the pauses, the judge started talking about the compensation that was being claimed for the complainants for violation of personal integrity. Initially, he emphasized that he personally felt that the case was serious. He continued saying that he had not decided how to handle the claimed compensations but that he advocated that either everyone should receive the compensation or nobody. In his elaboration on the matter, he was careful to state that the decision should not depend on which complainants they felt especially sorry for.
The judge seemed to be anticipating that there would be sympathetic feelings in this case, and to be worried that the sympathy flows would be unevenly distributed among the complainants. The reflection that sympathy should not have any consequences for the decision about compensation for violation of personal integrity may be interpreted as an instance of verbal and cognitive emotion work (Hoschschild, 1983) to maintain objectivity. By raising one’s awareness of sympathetic emotions in this way, sympathy becomes foregrounded and this elicits conscious emotion work. The fairness of the conclusion reached by the judge, ‘everyone or no one’, may serve to counter worries about being differentially affected emotionally by different complainants, and possibly being biased in favor of some of them. Although he did not specifically address the lay judges, the judge’s statement may also be seen as clarifying that there is no need for them to direct an epistemic interest at differences among the victims or their ‘idealness’, since this would not be of any importance. Importantly, he also stated that he personally felt that these crimes were serious. Positioning himself in this way, he was both reifying the professional/private division and also showing that he cared for the complainants as fellow human beings.
Another form of emotion work aimed at distancing oneself from sympathy involves the perceived authenticity of the emotions shown by the victims. A couple of days later, during the same trial, in one of the pauses, the same judge stated: It’s my own little view, but the last time I felt it was very obvious that these complainants almost immediately start talking about how bad they felt. And almost a bit…So I realize of course that…that [Christian name of the victims’ counsel] has taken this up with them, that it’s important that they talk about ‘Aha, I should say that I…?’, ‘No, but say that you feel bad, that’s better’ and so on. Yes, that was the first thing she said: [imitating an anxious voice] ‘Oh, no I haven’t been able to; I don’t trust people anymore’, ‘Yes, but say what happened’, [continues in anxious voice] ‘Oh, I feel bad and…I have the door locked now.’ [end of imitation]
The above quote also points to the importance of the temporality of sympathy cues, as the judge remarks on how fast the complainants start to talk about their feelings and how the crime has affected them. The phrasing of ‘Yes, but say what happened’ also shows how the legal interest in the beginning of the complainants’ testimonies is directed at the criminal event, not the consequences of it. Talking about the victims’ counsel’s closing argument in an interview after the trial, the judge said: ‘She didn’t say very much. […] But rather it’s probably been the use of the superlative “exceptionally ruthless”, so we’re used to that.’ While prosecutors and victims’ counsels may see their closing statements as a space for sympathy cues, judges seem to focus their epistemic interest in new legal angles they have not thought about and handle the sympathy cues with disinterest. In addition, positioning oneself as being used to the hardships of crime and of not letting them affect one can be seen as a performance of objectivity and professional experience.
Cute and witty – sympathy displays and playful resistance of victim status
Of the three cases examined, the complainants in the fraud case resemble Christie’s notion of ‘ideal victims’ the most. They are weak due to old age and were usually in their homes when the defendant approached them and initiated the fraud. It was also in this case that sympathy for the complainants was displayed most freely. On most occasions when a complainant started talking, all of the legal actors, including the defense lawyer, smiled warmly and leant their heads slightly to one side. 11 The many smiles, and occasionally laughter, in the courtroom were mostly related to expressions of ingenuity and playful insights by the complainants. For instance, when asked about the perpetrator’s age by the defense lawyer, one of the complainants, who knew she had been mistaken about the defendant’s age when she was interviewed by the police, wittily answered: ‘I think he’s [the defendant] been practicing that [looking younger and being deceptive]’, upon which everyone in court had a brief, warm laugh. During an examination by the victims’ counsel, another complainant was asked detailed questions about how the perpetrator got into her home, and answered that she did not remember, adding with a small laugh ‘I’m just an old woman.’ Hearing the answer, the judge also chuckled. In these situations, the complainants’ ingenuity and wittiness bring a form of playful resistance to the images of victimhood and old age. In a similar vein, complainants inverting the image of the perpetrator led to big smiles. On the third day, the victims’ counsel asked one of the complainants to describe the man who had come to her home in a bit more detail. She answered: ‘He should be working in a nursery instead, he was a real storyteller.’ There was a shared smile among the legal actors; the defense lawyer laughed and nodded his head while looking at the defendant, who also smiled. By portraying the perpetrator as less dangerous in this droll way, the complainant rejected some of the power imbalance between them and became easier to sympathize with.
Norms for claiming and receiving sympathy in court can be traced in these interactions. Paradoxically, complainants who counteract the image of being fragile and completely overwhelmed by the crime, and thus counteract the notion of ideal victims as weak, seem to elicit more displayed sympathy from the legal actors. When one of the complainants started crying, the legal professionals would perform something more like ‘neutral’ facial work. As several researchers have pointed out, the emotional display rules in court are governed by the ideal of objectivity and only allow very subtle emotional expressions (Bergman Blix and Wettergren, 2018; Flower, 2020). This seems especially important in situations involving ‘strong’ and ‘negative’ emotions, in which the emotions displayed by legal professionals can function as counter-moods and have a calming effect. As Clark (1997) has noted, showing sympathy underscores the plight of the receivers and can threaten their composure. In a study on victims’ emotion management in rape trials, Konradi (1999) elaborates on the instrumentality of the sympathetic actions of legal actors, as a means of both preserving the legal process and avoiding emotional breakdowns that might counteract the possibility of obtaining satisfactory testimony or prolong the proceedings. Downplaying sympathy in very emotional situations can therefore be seen as a counteraction that can help the complainants through the trial without breaking down.
Interpreting these interactions further on the basis of Clark’s (1987, 1997) work, claiming too much, as well as claiming too little, sympathy may diminish the sympathy margin of the victims. Further, intensity and duration are central aspects of how displayed emotions are perceived (Hochschild, 1983), and can have an effect on victims’ credibility (Ask and Landström, 2010). In an article on emotions in legal court proceedings in Sweden, Dahlberg (2009: 187) finds that an ‘underreaction’ to an offense that does not involve a breach of one’s personal integrity is seen as sympathetic. By presenting themselves as not being inclined to complain and as framing their plight in an appropriate, comprehensible way for the court, the victims who show resistance to victimhood in various ways may also be seen as adhering to the norms of receiving sympathy. In addition, the good-humored utterances of some complainants can ease the atmosphere in court, giving temporary relief from the burden of encountering hurt and anguish.
Comparing the fraud case with the other cases, neither of the other two elicited physical responses of this kind from the legal actors. In the attempted murder and the intimate partner case, the facial expressions of the judges and lay judges when listening to the complainants were more characterized by the ‘stoneface’ ideal (Bergman Blix and Wettergren, 2018). My interpretation of the physical responses in the fraud case is that hearing these elderly voices, with their typical features regarding timbre, tremor and pitch, elicited a ‘cuteness response’. Psychology scholars Sherman and Haidt (2011) discuss the ‘cuteness response’ as a moral emotion that confers social value and relates to a nexus of care/harm. They argue that cuteness initiates social engagement and that a cuteness response strengthens the relationship between sociality, motivation and mentalizing. In addition, smiles convey different social messages, and affiliative smiles, such as those displayed in this case, communicate social connectedness, approachability, positive intentions and sympathy (Rychlowska et al., 2017). Drawing on these ideas, a cuteness response is similar to sympathy in that it affiliates persons or a group of persons in ways that regulate both the kind and degree of social interaction. Importantly, the cuteness response can also be linked to the power dimension of giving and receiving sympathy. Framing these elderly victims as harmless and worthy of sympathy also emphasizes their subordinate position and may influence their chances of being taken seriously. Linking this to the conceptual ideas of ‘ideal victims’ and sympathy, when vulnerability coincides with cuteness it conveys images of being adorable in combination with an imperative to be cared for.
Stretched sympathy margins and an altered interaction order
In the interviews, several of the legal actors working on the fraud case said that the complainants reminded them of their own parents or grandparents. Expressing a certain satisfaction, the prosecutor in our interview following the conviction noted that ‘the entire panel [of lay judges] were pensioners and that this was quite good; that they could see their relatives being defrauded. That they had no problem with empathy.’ The degree of intimacy revealed by these reflections may be interpreted as a frame for the empathic imagination, not conceiving what we ourselves would feel in the same situation but using the perspective of close relatives in order to obtain an understanding of the complainants’ situation and how it has affected them. This frame facilitates an emotional connectedness and stretches the sympathy margin of the complainants.
In the interviews with the legal actors in this case, their empathic imagination was mostly directed at anticipating possible obstacles to the smooth running of the court hearing. In general, they expressed worries about the complainants’ health conditions, that they would find being questioned in court stressful and that they would not remember the criminal incident very well. Almost all of the questioning was conducted via telephone and this gave rise to some additional concern about how the elderly would be able to handle the technology. According to Sherman and Haidt (2011) a cuteness response activates a moral concern and willingness to help. Thus, a cuteness response can amplify sympathetic emotions and actions. As described by Clark (1997: 21), sympathy offers ‘a temporary release from everyday role expectations’. In the fraud case, this translated into a propensity to expand the normal order for taking the testimony of the complainants.
During the district court hearing, the judge and the other legal actors were on several occasions required to deal with the fact there was someone else in the same room as the complainant and that the complainant was not answering the questions by themselves. Still, this palpable departure from the strict regulations governing court testimony was handled very gently by comparison with similar situations in the other trials that I have observed. On most of these occasions, the prosecutor would cautiously point out that it was the complainant alone, and no one else, who should be heard. If the complainant continued talking with someone else during her testimony, the judge would break in with a stronger remark. In cases in which the legal actors’ actions did not make a difference, the judge, prosecutor and defense lawyer would exchange glances so as to agree that they had done all they could to follow the regulations in a correct way and then let it pass. These glances may here be interpreted as a central means for maintaining the procedural smoothness without further threatening the face of the complainant (cf. Bergman Blix and Wettergren, 2018: 93).
These interactions are interesting examples of how concern and sympathy for ‘ideal victims’ can give rise to a line of actions that serve to avoid an uncomfortable confrontation and that put the well-being of the complainants before correct procedure. Drawing on the interviews, no elaborate decisions had been made to act in this way; instead, it was rather an intuitive response to the situation. Working below consciousness and in the background, sympathy not only steers attention, but can also guide actions focused on safeguarding a complainant’s boundaries and integrity.
Conclusions
The ultimate aim of the legal process is to maintain the due process of law, and among legal actors integrity is considered a primary value. In this professional setting, integrity is associated with impartiality and independence in decisions and adjudications. Roach Anleu and Mack (2005, 2013) describe how solemnity and dignity saturate the emotional space in the courtroom. At trial, judges, prosecutors and defense lawyers alike are all expected to be serious and resolute. As the Swedish legal system builds on the principles of orality and immediacy, being attentive and open-minded are important aspects of the professional role. The legal procedure demands legal actors to listen and imagine events ‘with reservations’ (Phelan, 2007) and through a ‘skeptical receptiveness’ (Törnqvist, 2017). In the legal context, sympathy is associated with being biased and is shunned by legal actors.
Exploring different forms and flows of sympathy in courts in Sweden, the main findings of the study suggest that although sympathy is mostly backgrounded and is only openly talked about when this is conditioned by confidence in a decision that has already been made, sympathy in different forms has a more pervasive presence in court hearings and deliberations than is commonly acknowledged in the legal field. In the cases examined, prosecutors, defense lawyers and victims’ counsels use sympathy cues to strategically ‘move’ the judges and lay judges in a favorable direction for their purposes. In response, judges have strategies for emotion work that shield them from these cues. Further, sympathy margins seem to increase when the complainants have some distance to their victimization and are able to perform a playful resistance toward their victim status. While ‘stonefaces’ and very subtle emotional expressions are the general code for legal actors in the courtroom (Bergman Blix and Wettergren, 2018; Flower, 2020), this study shows how an ideal victim status in combination with a cuteness response can evoke more unrestrained displays of affiliative smiles and other sympathetic gestures. In encounters with ‘ideal victims’, sympathy can sometimes lead to moments of temporary relief from the normal interaction order in court, as exemplified in the testimonies of elderly complainants.
Drawing on rich qualitative data, which has included shadowing and interviewing judges and prosecutors during court proceedings and deliberations, this study offers a unique insight into the exchange of sympathy in Swedish courts. In Henderson’s view, characteristic of the field of law and emotion, sympathy is conceptualized as ‘pain without a cognitive component’ (1987: 1584). In this view, there seems to be no professional use of sympathetic emotions among legal actors. In contrast, while acknowledging that compassion challenges fairness, consistency and other judicial ideals, Bandes (2017: 194) also concludes that compassion can contribute to the rule of law, as it stimulates perspective-taking and humility (see also Del Mar, 2017). Further, Bandes criticizes a simplistic view of sympathy and compassion as human impulses with no cognitive dimensions. Along these lines of thought and given the findings in this study, I would also like to argue that there are components of sympathy that can assist legal thought and practices.
First, sympathy involves an evaluative element that arises from our interpretation of a situation, and, secondly, the recognition of another person’s difficulty evokes both feelings and thoughts about this person. Additionally, I want to suggest that sympathy as caring may serve as an incentive to engage more deeply in the empathic process of understanding another person’s situation (cf. Del Mar, 2017). In encounters with pain and suffering caused by crime, this might be even more important, since such situations demand the empathic imagination to go beyond the well-known, the ‘self-oriented perspective-taking’, and to land in an unfamiliar ‘other-oriented perspective-taking’ (Coplan, 2011). The latter may help us to gain understandings of experiences we have never had and probably never will have and to grasp what these experiences might mean to a particular person. It may also serve to deepen an understanding of how a place and situation that may be commonplace to us can impose great stress on others, such as the courtroom and court proceedings for legal actors compared to lay people. Darwall (1998) argues that in settings that require well-developed empathic abilities, sympathy is more common. In the legal context, Bergman Blix (2019) has shown how empathy among legal actors can develop into sympathy, feeling the full suffering of the victims and their relatives. Consequently, processes of empathic imagination are likely to incite some suffering in the empathizer herself or himself, with these feelings stimulating her or him to imagine a situation more richly (Del Mar, 2017: 146–147). While hurt, suffering and sadness can be described as ‘negative emotions’ that people generally try to avoid, concern or care for someone can further help us to overcome a resistance to imagining and feeling our way into painful situations. In addition, emotions that correspond to another person’s misery may be important in order to feel human and warm-hearted in a legal world that threatens to make one cynical (Törnqvist, 2017). While there are situations in the work of legal actors from which they need to actively distance themselves emotionally in order to perform objectivity and impartiality, as when they evaluate the evidential significance of a gruesome photo or assess the credibility of an agonizing testimony, in other situations sympathy may serve to improve their assessments and make their work meaningful.
Thoits (2004: 372) has argued that both sympathy and empathy consolidate social solidarity in important ways and that this may be a reason why they are ‘governed by a set of norms that closely regulate the exchange’. Understanding how these norms prevail in the legal context highlights important aspects of how care and concern for complainants, as well as defendants, not only challenge but can also improve criminal justice processes. While sympathy is commonly linked to bias and partiality, this study presents a more nuanced image, since it shows how sympathy also results in respect and an increased attentiveness for the involved parties’ situation and perspective. Taken together, I would argue that the temporality of sympathy and its balanced allocation are of great importance for how it operates in court.
In claiming that sympathy may be beneficial in legal settings under certain circumstances, it is important to acknowledge that people have a tendency to sympathize with persons with whom they identify (Bandes, 2017; Coplan, 2011; Nussbaum, 1996), which shows that sympathy is stratified in line with structures of power and inequality in society. However, this knowledge warrants the use of more empathic imagination and sympathy rather than less, since research shows that more highly developed empathy is versatile and makes it easier to divide one’s sympathy between different parties (Del Mar, 2017). In conclusion, while legal proceedings should never be reduced to sympathy contests, it is important to further our knowledge about how sympathy forms and informs legal thought and practices.
Footnotes
Acknowledgements
I would like to thank Associate Professor Stina Bergman Blix and Associate Senior Lecturer Isabel Schoultz for their invaluable comments on earlier drafts of this article. I would also like to thank the two anonymous referees and the editor Joanna Shapland for insightful and constructive comments and David Shannon for the language revision. The writing of this article was made possible by a grant from the Swedish Research Council (2016-01218) and from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation program (grant agreement No 757625, JUSTEMOTIONS).