Victims' Rights and Victims' Wrongs

Comparative Liability in Criminal Law

Vera Bergelson

• Publisher: Stanford Law Books
• Year: 2009
• ISBN:
  9780804772433
• Edition: 1
• Topic: Jura
• Subtopic: Strafrecht

"Don't blame the victim" is a cornerstone maxim of Anglo-American jurisprudence, but should the law generally ignore a victim's behavior in determining a defendant's liability? Victims' Rights and Victims' Wrongs criticizes the current criminal law approach and outlines a more fair, coherent, and efficient set of rules to recognize that victims sometimes co-author their own losses or injuries.

Evaluating a number of controversial cases involving euthanasia, sadomasochism, date rape, battered wives, and "innocent" aggressors, Vera Bergelson builds a theoretical foundation for reform. Her approach to comparative criminal liability takes into account the actions of both the perpetrator and the victim and offers a unitary explanation for consent, self-defense, and provocation. This innovative book supplies a practical and coherent mechanism for evaluating the impact of a victim's conduct on a perpetrator's liability in a variety of circumstances, including those that are now artificially excluded from comparative analysis.

Part 1

REALITY CHECK

Can Victims Be Partly Responsible for the Harm They Suffer?

1

VICTIMS’ CONDUCT IN CRIMINAL LAW AND CRIMINOLOGY

CRIMINOLOGICAL STUDIES OF VICTIMS AND VICTIM-OFFENDER RELATIONSHIPS

For years, social scientists have been calling attention to the incomplete, decontextualized approach taken by the law—with respect not only to the victim-offender relationship but also to other aspects of criminal behavior relevant to the concept of personal responsibility, the overarching concept of criminal justice. ¹ This narrowness has been the source of great frustration among social scientists whose work has been systematically excluded from the lawmaking process. A scholar complained: “Much that a social scientist would want to know about the historical, social, contextual, and even immediate situational influences on criminal behavior—knowledge that otherwise would be crucial to meaningfully analyze and truly understand the actions of a criminal offender—is deemed irrelevant by the criminal law.”² One of the major shortcomings of criminal law, in their view, is that penal statutes do not adequately reflect the variations of human interactions. Criminal law has been criticized because

[i]t introduced abstraction as a domineering force, it introduced the rule of the paper, and it made criminal justice merely the interpretative machinery of the printed law: the goddess Justicia probably was impartial and knew the law very well, but her blindfold deprived her of the sight of complex interactions, group characteristics, and social problems. The criminal-victim relationship, like many other aspects of crime, therefore remained unknown to her.³

Of course, as a normative code, the law ought to be selective in choosing relevant facts; however, to be fair and effective, it may not ground its doctrines in an erroneous vision of the world. Criminological studies represent an important source of information about victim-perpetrator interaction. Thus, it may be helpful to start discussion of respective responsibility of victims and perpetrators with a brief overview of criminological research and findings.

Social scientists began to study criminal-victim interactions in the late nineteenth century,⁴ and by the middle of the twentieth century victimology emerged as a free-standing branch of criminology⁵ with a focus on the victim-offender relationship and the harm suffered by the victim as a result of the offense.⁶ Two people are usually recognized as its founders—Benjamin Mendelsohn and Hans von Hentig.⁷ A practicing attorney, Mendelsohn conducted a questionnaire study of his clients and formulated a typology that encompassed several degrees of victim culpability, ranging from the “completely innocent victim” (e.g., a child) to the “victim who is guilty alone” (e.g., an aggressor killed by the target of his attack in self-defense). Between these two extremes, Mendelsohn placed the “victim with minor guilt,” the “victim as guilty as the offender,” and the “victim more guilty than the offender.”⁸ Approximately at the same time, Hans von Hentig suggested that there is an interconnection between the “killer and killed, duper and dupe.”⁹ According to von Hentig, the victim was not merely a passive figure but rather an “activating sufferer” who played a part in the creation of the criminal act yet who was barely considered by our legal system.¹⁰ Von Hentig wrote:

I maintain that many criminal deeds are more indicative of a subject-object relation than of the perpetrator alone. There is a definite mutuality of some sort.... In the long process leading gradually to the unlawful result, credit and debit are not infrequently indistinguishable.¹¹

Mendelsohn’s and von Hentig’s works were followed by numerous other typologies that used sociological, psychological, biological, and other criteria to measure the level of a victim’s susceptibility to, and involvement in, a criminal act.¹² A contemporary sociologist has commented that “[b]y raising questions about victim proneness, vulnerability, and accountability, [the first victimologists] put forward a more complete but also more controversial explanation about why laws are broken and people get hurt.”¹³

The essence of the controversy was the idea of shared responsibility, which implied that some victims as well as offenders did something wrong. Ever since the rise of the victims’ rights movement in the 1970s, that idea and its implications have been hotly debated among victimologists. The “victim-blaming” and “victim-defending” tendencies clashed on a number of issues. However, as a recent influential work shows, victimologists cannot be simply divided into victim-blamers and victim-defenders. Advocates of both approaches often switch sides, depending on the facts of the case, the nature of the crime, and the parties involved.¹⁴ The same people may criticize one group of victims (e.g., abusive husbands who get killed by their wives) but defend another (e.g., women who have been raped by acquaintances).

The victims’ rights movement and the “discovery” of the victim by sociologists resulted in an important change: crime victims stopped being invisible. The enormous volume of research data collected and analyzed by victimologists is an invaluable source of information regarding crime, community standards, values, ethics, prejudices, and allegiances.

The first comprehensive empirical study of “victim-precipitated” crimes focused on homicides committed in Philadelphia from 1948 to 1952.¹⁵ The study showed that in approximately 25 percent of all murders, the deceased was the first to use force, by drawing a weapon, striking the first physical blow during an argument, or in some other way initiating violence. Situations that resulted in violence included charges of infidelity, arguments over money, drunken brawls, and confrontations over insults and “fighting words.”¹⁶

In the late 1960s, the National Commission on the Causes and Prevention of Violence (NCCPV) was formed to investigate, among other things, the victim’s role in several types of street crime.¹⁷ After reviewing police files from seventeen American cities, the commission concluded that instances of victim-precipitated behavior were not uncommon in cases of homicide and aggravated assault, less frequent but still empirically noteworthy in robbery, and least relevant in cases of rape.¹⁸

Further studies have expanded on the results of the NCCPV and other research. ¹⁹ A 1988 survey of nearly 10,000 homicide cases indicated that 19 percent of the victims were armed with a gun, a knife, or another deadly weapon. “Some armed victims used the deadly weapon to provoke the defendant. Others provoked the defendant with a nonlethal weapon or their fists or by pushing the defendant. Altogether, 19 percent of the victims in some way provoked the defendant.”²⁰

When victim precipitation was defined more broadly as any situation in which provocative behavior of the victim played an important role in the perpetrator’s decision to act²¹ or encouraged the offender into a progression of violence,²² the victim precipitation rates were found to be as high as 49 to 67 percent. In an examination of homicides preceded by “hard drinking, weapon possession, insulting banter, and displays of physical toughness,”²³ a researcher concluded that “distinctions between victims and offenders are often blurred and [are] mostly a function of who got whom first, with what weapon, how the event was reported, and what immediate decisions were made by the police.”²⁴

In cases of violent crimes, distinctions between victims and offenders may be particularly distorted. Thus, recent years have witnessed a startling spike in killings of victims with criminal histories. For example, in 2007, 91 percent of murder victims in Baltimore had criminal records, up from 74 percent a decade ago. In Philadelphia, that number went up from 71 percent in 2005 to 75 percent in 2007. In Milwaukee, the homicide commission created after the number of murders increased by 39 percent in 2005 found that 77 percent of homicide victims in the past two years had an average of nearly twelve arrests.²⁵ Police and crime analysts agree that understanding interpersonal dynamics is critical to driving crime back down. “If you are trying to look at prevention, you need to look at the lives of the people involved,” says Mallory O’Brien, director of the Homicide Review Commission in Milwaukee.²⁶

In addition to academic research and investigations of reported crimes, victimologists conducted numerous polls of public opinion. The polls—predictably—found that people in general, and jurors in particular, assign significant weight to victims’ behavior prior to the offense.²⁷ According to a famous study of juries, one of the main instances in which juries apply the power of nullification to acquit the defendant is when they take into account the contributory fault of the victim.²⁸ Moreover, research has shown that evidence of the victim’s conduct affects all stages of a criminal proceeding:

Offenders who kill the victim in response to a physical attack are less likely to be prosecuted; if they are prosecuted, they are less likely to be indicted; and if they are indicted, they are less likely to be convicted of the most serious indictment charge rather than a reduced charge.²⁹

As an illustration, consider statistics collected by the Department of Justice. In 1988, approximately 540 people in the nation’s seventy-five most populous counties were charged with killing their spouses.³⁰ Of these defendants, 43 percent pleaded guilty, 44 percent pleaded not guilty and stood trial, and 13 percent were not prosecuted.³¹

Spouse Murder Defendants in Large Urban Counties

Cases in Which Perpetrators Were Not Prosecuted^a

Dallas. The wife (the victim) is eighty-nine and has been married sixty-five years. A recent stroke leaves her in terrible pain. She pleads with the doctor to kill her. The doctor refuses. The eighty-seven-year-old husband goes to the hospital and shoots her. He is immediately arrested.

New Orleans. For years, the forty-three-year-old husband (the victim), a dry cleaner operator, has beaten his thirty-five-year-old wife. At the time of the murder the two are fighting and the husband stabs her in the back. She grabs the knife and stabs him, causing him to bleed to death. She is arrested the same day. She claims self-defense and the victim’s family voices no objection.

New Orlea...