Victims' Rights and Victims' Wrongs

COMPARATIVE LIABILITY IN CRIMINAL LAWBy Vera Bergelson

Stanford University Press

Copyright © 2009 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-5538-2

Contents

Acknowledgments................................................................................................ixIntroduction...................................................................................................11 Victims' Conduct in Criminal Law and Criminology.............................................................92 Why Does Criminal Law Need a Generic Defense of Comparative Criminal Liability?..............................363 What Happens to Victims' Rights in Situations of Consent, Self-Defense, and Provocation?.....................614 The Principle of Conditionality of Rights....................................................................915 How Long Do Victims' Rights Remain Limited?..................................................................1276 The Defense of Comparative Criminal Liability................................................................141Conclusion.....................................................................................................161Notes..........................................................................................................167Bibliography...................................................................................................213Index..........................................................................................................229

Chapter One

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. 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." 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.

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, and by the middle of the twentieth century victimology emerged as a free-standing branch of criminology with a focus on the victim-offender relationship and the harm suffered by the victim as a result of the offense. Two people are usually recognized as its founders-Benjamin Mendelsohn and Hans von Hentig. 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." Approximately at the same time, Hans von Hentig suggested that there is an interconnection between the "killer and killed, duper and dupe." 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. 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.

Mendelsohn's and von Hentig's works were followed by numerous other typologies that used sociological, psychological, biological, and other criteria to mea sure the level of a victim's susceptibility to, and involvement in, a criminal act. 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."

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 oft en switch sides, depending on the facts of the case, the nature of the crime, and the parties involved. 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. 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."

In the late 1960s, the National Commission on the Causes and Prevention of Violence (NCCPV) was formed to investigate, among other things,...