Blaming the Biking Victim

It’s the job of defense attorneys to provide a zealous defense of their clients. But that doesn’t excuse them from criticism when they cross the line.

That’s what happened this week when attorney Mark Eisenberg asked a Dane County sheriff’s deputy if he had heard complaints about Cynthia Arsnow riding her bike on Highway 14.

Arsnow rode her bike from her home on Madison’s East Side to her job in Cross Plains. It’s about a 20-mile trip one way and Arsnow took the most direct route, which is Highway 14. That’s a fairly highly trafficked road, but it has a wide paved shoulder and it’s relatively straight and flat. When you’re just trying to get to your job, it makes sense to take it.

Cynthia Arsnow was just trying to get to work when she was killed by Rollen Fries.

Arsnow had every right to be there and there are no reports that she didn’t take every reasonable precaution. In fact, she made that trip for many years without incident.

Then last July Rollen J. Fries, a Mazomanie man, swerved onto the shoulder and killed her. His excuse was that he was reaching for something on the passenger’s seat. But did he do it intentionally, in a flash of road rage, irritated that a cyclist would dare to claim their legal space along his highway? Witnesses said that Arsnow had been clearly visible to other drivers along a straight stretch of the road before Fries swerved right into her.

Still, intentional homicide in a case like this would be very hard to prove. Instead, Fries is charged with homicide by negligent driving and he has now been ordered to stand trial for his actions. Our thanks go to the Dane County District Attorney and Sheriff’s Department for sticking with this case and bringing the charges they could. Now, unless there is a plea deal before trial, we’ll see what a jury decides.

This brings us to Eisenberg who according to press reports about a preliminary hearing asked a sheriff’s detective whether there had been any complaints in the past about Arsnow riding her bike along Highway 14. To his credit, Dane County Circuit Judge John Markson disallowed the question as not relevant to the preliminary hearing.

But, frankly, where does Eisenberg get off asking a question like that at all? We don’t know if there were complaints, but what if there had been? Arsnow was doing something both entirely legal and appropriate. Drivers do not own the road. The safe thing to do in this situation is simply to slow down and pass the cyclist with caution. It might cost three or four seconds on a trip.

Eisenberg’s question is indicative of a bigger problem in our society: the idea that a person riding a bicycle on a state highway is somehow responsible for her own death or injury should a driver hit them. It’s a classic case of blaming the victim.

Of course, we don’t know how Fries’ trial will turn out, but his lawyer is already guilty of ignorance.

About Dave Cieslewicz, Executive Director

Dave Cieslewicz served two terms as mayor of Madison where he set the city on a path for Platinum status as one of the best biking cities in North America. Before that he started his own nonprofit, 1000 Friends of Wisconsin, which focuses on land use and transportation policy. He has been an adjunct professor at the UW Madison's Department of Urban and Regional Planning where he teaches a class called Bikes, Pedestrians and Cities. He pronounces his name chess LEV ich, but nobody else does.

7 thoughts on “Blaming the Biking Victim

  1. Thanks for posting this Dave. I see this all of the time from lawyers who get hired by insurance companies. Some insurance lawyers blame the person riding the bicycle no matter what. If the person riding the bicycle gets cut off by a left turning driver of car and crashes into the car, they say the person riding the bicycle is at fault for not noticing the turning car (failure to keep a lookout) and avoiding it. If the same person riding a bike gets cut off by a left turning driver of a car and hits both brakes hard and crashes to avoid the car, then the argument is that the person riding the bike over reacted and would have been fine if they just didn’t brake as hard.

    Some insurance lawyers will even go as far as arguing opposite the law. For example, the law says a driver of a motor vehicle has duty to drive at rate of speed that will permit the driver to stop within the distance the driver can see ahead and if driver can’t see, driver has duty to slow down, or even stop. It is very common for insurance lawyers to argue that a person riding a bicycle is at fault because the person driving the car had sun in his or her eyes or was cresting a hill or some other obstruction. In my opinion, this causes the insurance lawyers to lose credibility with the judge or others because they are either knowingly lying in court, or not smart enough to read and learn the law.

    Some insurance lawyers (and sometimes the police as well) try to create duties for people riding bicycles that do not exist in law. For example, when people riding bicycles get hit by distracted drivers, the insurance lawyers may argue the person riding a bicycle didn’t have any neon/high vis clothing. There is no clothing requirement for pedestrians or people riding bicycles, and when people driving cars watch where they are going, there is no need for neon or high vis, running lights during the day etc. I believe the recently revamped WI DOT mandatory crash report form has a specific section on it for a police officer to choose whether a pedestrian or person riding a bicycle had dark clothing on. This seems to encourage victim blaming.

    Over the years people riding bicycles have made it easier for people driving cars to blame them by acting like riding a bicycle is a dangerous activity where you take your life into your hands. The more people wearing neon and riding with lights during the day makes it seem like it is necessary. This is not necessary when people driving motor vehicles look where they are going. We should focus on the people causing the harm/driving motor vehicles and get them to look where they are going rather than focus on riding with lights during the day and neon clothes etc. Neon and lights during the day don’t work when someone is looking at their phone.

    I took the Hunter’s Safety Class in Sheboygan when I was 12 years old. The teacher made a huge point of how dangerous guns can be and why it is very important to treat them with respect and great care. The teacher never told us it was o.k. to shoot someone and then blame the person for not wearing blaze orange. Instead, they taught us how to avoid causing injury or death rather than screwing up and then blaming the victim.

    To compare hunters safety with the bike/car situation, imagine if people told bow hunters and turkey and duck hunters that it’s just too dangerous to wear camo so they have to purchase and wear neon clothes and blinking red lights even during the day time hours. Since Wisconsin hunters have always focused on the person causing the harm (the shooter) and not the victim, we don’t have hunters walking around with neon and blinking lights in the woods. We are able to put 600,000 people with guns in the woods on the same days with little to no injury or death.

    Or imagine the common claim by drivers of motor vehicles that because many people who ride bicycles roll stops or red lights, it means whenever any person riding a bicycle gets hurt, it is the fault of the person on the bike. Applied to hunters it would go like this, well, yes, Bob Smith admits he saw a bush in the woods moving and shot it seven times before he could tell that the moving bush was really a hiker named Sally Joe. It doesn’t matter that he killed her though and shot something he didn’t know what it was, because in years past, Bob saw many other hikers hiking without permits and not picking up after their dogs. Since we all know most hikers don’t follow the law, it’s o.k. that Bob killed Sally the hiker.

    The focus should be on the person who can cause the most harm. I wish this was the case with people driving motor vehicles. I am not aware of one person in the history of the world who was injured or killed while behind the wheel by a person riding a bicycle.

    • +1, Clay.

      And regarding the hi-viz clothing: I bought a new winter jacket recently and chose black because I wanted something that looked nicer if I was going to a meeting or NOT on my bike.

      One person commented, “But you can’t wear that to [bike] commute.”

      When I asked why not, he said, “It’s black.”

      I pointed out that it was not my responsibility to dress like a neon sign just to go to work or shopping, that I have VERY bright lights and flashers for nighttime use, and I could certainly add a safety vest if the weather was foggy or visibility was otherwise compromised. I felt that drivers should be paying attention to the road, and we don’t seem to blame drivers for crashes if they drive a gray or black car.

      “Yeah, you’re right. I just always get yelled at if I’m not wearing yellow or bright orange.”

      Sad.

    • This ad campaign bothers me also. Corporations get big, and get so obsessed with profits that they forget basic human decency and simple manners. Trek can make money if they run a scare campaign telling people to have running lights, and that is all they care about.

      • That’s how the helmet law got started. An industry searching for a new market cooks up a fake study and then fools governments into enacting laws that they then profit from. Meanwhile people are having their lives’ quality reduced while they rake in the profits from selling a dollar’s worth of foam at a huge mark up.

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