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What Are They, and How Can They Be Prevented?
Avoid lawsuits beyond all things; they pervert your conscience, impair your health, and dissipate your property.
-Jean de la Bruyere (French satirist)
At its core, litigation aims to correct an imbalance of power. An individual-or society at large-has been wronged, and seeks a remedy through the criminal justice system by compelling the accused to serve out a sentence or pay material compensation. This appropriate and readily understandable aim belies the fact that litigation may not be a salubrious process for its participants and can easily accentuate a myriad of uncomfortable emotions such as fear, shame, and doubt.
It was once observed: "Lawsuits are frequently about loss and tragedy. Indeed, few areas of the law do not have emotional consequences for someone. The workers' compensation system is obviously about injury. Adoptions and even trusts and estates law are often at their psychological (compared with legal) cores contests of who loves whom, and how much." (Larry H. Strasburger, The Litigant-Patient: Mental Health Consequences of Civil Litigation, 27 J. Am. Acad. Psychiatry & L. 203, 203 (1999).) When it comes to the criminal justice system, the causes of aforesaid imbalances of power-such as robbery and assault-in and of themselves frequently produce psychological distress and in fact may be the basis for a separate tort case, e.g., suing for emotional damages.
This article aims to highlight the potential psychological consequences that may result purely from involvement in litigation, with a special focus on criminal litigation.
WHAT ARE CRITOGENIC HARMS?
Recognizing early that there might be emotional harms associated with this process, the Program in Psychiatry and the Law at the Harvard Medical School Massachusetts Mental Health Center (pipatl. org) coined the term "critogenic" harm (Greek construct translated as "brought forth by the judge" and, by...