As we progress as a society and reject the notion that any person is more or less deserving of assault, defendants cannot as easily get away with victim blaming.
“If you were really raped, why did you not tell anyone sooner?”
“Why were you going there at that time?”
“Have you ever said yes to this person in the past?”
“Why were you wearing that dress and those heels?”
In my work representing survivors of sexual assault and abuse, those are some of the questions I prepare my clients to answer when they sit in the witness box and tell a group of 12 strangers the most intimate and horrible details of the worst thing that has ever happened to them. As part of their fight for justice, I have to prepare them for attacks on their judgment, their character, their relationship choices, their mental health struggles, and sadly, even in 2022, their clothing and shoe choices.
But increasingly, and thankfully, the tactic I’ve dubbed a “pink high heels” defense is not only failing alleged abusers, but I have also seen how it can backfire—angering juries and potentially motivating them to give larger verdicts than they would have—sending a powerful message to the survivor, the perpetrator and the responsible parties who failed to prevent the abuse or assault.
They attempted to cast her in a negative light because of her shoe choice, on what became the worst night of her life.
The tactic has many variations, but it is encapsulated by a recent case in which I co-represented a young woman who, due in large part to a series of avoidable and reckless failures by hotel staff, was taken into a room that was not hers and raped by a man who communicated to the hotel staff “she’s with me.”
During the trial, for no reason relevant to the case, the hotel chain’s legal team repeatedly and aggressively brought up the type of shoes she was wearing the night of the assault: pink high heels. Despite the fact that she was incapacitated at the time of the assault and unable to respond or consent to anything, they seemed to be trying to illustrate the “type” of woman she was by forcing her to answer multiple rounds of questioning about the style of shoes, their color, what she called them and so on. It was infuriating to watch as they attempted to cast her in a negative light because of her shoe choice, on what became the worst night of her life.
That case ended with a $44.6 million jury verdict in her favor. Perhaps even more importantly, it ended with our client feeling seen and empowered, a jury of her peers saying that what happened to her was not her fault and should never have happened, and the hotel chain being held accountable to a degree that would push it to change its protocols to keep future guests safe.
It ended with our client feeling seen and empowered, a jury of her peers saying that what happened to her was not her fault and should never have happened.
Unfortunately, victim blaming and shaming is far from a new defense tactic. For example, I have seen questions directed at a young teenage girl I represented about why she did not tell her school’s administrators earlier when a teacher sent her sexually explicit messages—as if she would want anyone to know about such an embarrassing and degrading experience.
In other cases, victim blaming is a last resort once other defenses have failed. Those in positions of power often treat survivors they deem “too” anything—dressed too sexy, drinking too much, out too late—as less than. There is also an inherent comparison of the survivor to an ideological “perfect victim” who immediately recognizes the assault as such, reports it to the authorities, and reacts to the trauma in a way deemed acceptable. By casting survivors as less than and different from that “perfect victim,” defendants imply they are deserving of what happened to them.
What is new, however, is that this specific type of targeted questioning and focus on something like “pink high heels” is no longer working. It has always been cruel and a pathetic attempt to evade accountability, but now this type of strategy is backfiring. As we progress as a society and reject the notion that any person is more or less deserving of assault, defendants cannot as easily get away with attacking victims for their pink high heels.
Those responsible for sexual assault and abuse will hopefully soon learn the ramifications of their victim blaming tactics and end the all-too-common practice of shaming survivors seeking justice. Survivors deserve to be taken seriously and viewed as human beings worthy of respect and safety regardless of the clothes they wear, if they’ve been drinking, or if their heels happen to be pink. While I am realistic about how much change is possible, a new day has arrived in which taking the avenue of “but look at the pink high heels she was wearing that night” will put the accused in only greater jeopardy in the eyes of the court and the public.
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