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Victims' Rights and Victims' Wrongs COMPARATIVE LIABILITY IN CRIMINAL LAW
By Vera Bergelson
Stanford University Press Copyright © 2009 Board of Trustees of the Leland Stanford Junior University
All right reserved.
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, the victim's role in several types of street crime. 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.
Further studies have expanded on the results of the NCCPV and other research. 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."
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 act or encouraged the offender into a progression of violence, 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," a researcher concluded that "distinctions between victims and offenders are oft en 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."
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. 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.
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. 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. 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.
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. Of these defendants, 43 percent pleaded guilty, 44 percent pleaded not guilty and stood trial, and 13 percent were not prosecuted.
The disposition of these cases, as indicated by the facts summarized in the table above, largely depended on whether the victim had initiated or provoked violence. Specifically, the study revealed a lower conviction rate of wife defendants compared to husband defendants and hypothesized that this disparity was, in part, a function of the higher frequency of provocation by husbands rather than wives. Based on the information contained in prosecutor files, 44 percent of wife defendants (compared to 10 percent of husband defendants) had been assaulted by their spouses (beaten or threatened with a weapon) at or around the time of the homicide.
According to the study, the victim's aggressive conduct was considered at all stages of the prosecution. Sixteen percent of all women arrested on a charge of spousal homicide were not prosecuted; most of them were screened out because prosecutors concluded that the killing happened in self-defense. In those cases in which wife defendants pleaded guilty, provocation provided grounds for a reduced charge. Finally, in the cases that reached the trial, only 56 percent of the provoked wife defendants were convicted. This number was significantly lower than either the 86 percent conviction rate for unprovoked wife defendants or the 88 percent conviction rate for unprovoked husband defendants. The study concluded that victim provocation may have reduced the likelihood of prosecution and conviction.
It thus appears that sociological theories, factual findings, and the views equally prevalent among the public and members of the criminal justice system all reflect the same intuition, namely, that the victim's own behavior matters. It is oft en a relevant "but for" cause and even a proximate cause of a crime. In short, victims may be partly responsible for their own injury or loss. What about the law? Does it account for victims' conduct, and does it weigh the fault of the defendant against the fault of the victim?
In private law, the answer is clearly "yes." In contracts, a material breach by one party serves as a complete defense to the following breach by the other. In property, an owner's failure to eject an adverse possessor from the estate may result in the owner's loss of the title to that estate. In torts, the closest relative to criminal law, long-established doctrines of comparative fault, consent, and assumption of risk effectively provide that the scope of the defendant's liability depends on the injured party's own acts. The development of tort law doctrine from contributory to comparative fault has eliminated the unfairness of denying recovery to a partially faulty victim and marked a big step toward a more contextualized view of the victim-perpetrator interaction. Tort "no duty" rules, as applied to plaintiffs, guard against penalizing the victim in a situation in which the victim might have acted stupidly or reprehensibly but did not violate a legal duty to the defendant. For instance, a driver owes no duty to a car thief to lock his car (even though he may owe the same duty to the public). Therefore, the fact that the plaintiff carelessly left his keys in the ignition does not diminish his recovery against the car thief.
Criminal law, on the other hand, has explicitly rejected the idea of comparative liability. It has been said that, according to a nearly universal rule, a victim's own negligence is not a defense in a criminal prosecution. Courts are unanimous in stating that unless it is the sole proximate cause of the resulting harm, the victim's conduct is irrelevant. This declaration, however, is not quite accurate. Several criminal law doctrines depart from the declared paradigm. The most prominent among those are the doctrines of consent, self-defense, and provocation. All three condition the scope of the perpetrator's responsibility on the conduct of the victim. Let us examine these doctrines and the role the victim-perpetrator interaction plays in judicial determination of the defendant's fault.
VICTIMS IN CRIMINAL LAW
The victim's consent to a perpetrator's act is one situation in which the victim's behavior dramatically changes the nature of the perpetrator's criminal liability. The law looks upon the same actions very differently depending on whether they are consensual or not:
What is called a "fond embrace" when gladly accepted by a sweetheart is called assault and battery when forced upon another without her consent; the act of one who grabs another by the ankles and causes him to fall violently to the ground may result in a substantial jail sentence under some circumstances, but receive thunderous applause if it stops a ball carrier on the grid-iron.
In most instances, valid consent either negatives an element of the offense or justifies what would otherwise be a criminal act. A person is not guilty of rape, kidnapping, theft , or many other serious crimes if what he did was based on a legally valid consent. This rule, however, has exceptions, and in this section I will focus on those with the view of assessing their legitimacy and desirability from the perspective of the philosophy and policies underlying the general theory of consent.
A commentary to the Model Penal Code (MPC) lists a number of offenses to which an individual may not give valid consent. The most prominent among them is homicide-the victim's consent to being killed does not justify the perpetrator. Other offenses include riot, escape, breach of the peace, bribery, and bigamy. Interestingly, the reasons for denying the defense of consent in the case of homicide have little in common with the reasons for denying the defense in the other cases. If we look closely at the group of offenses from riot to bigamy, it will be clear why consent may not work as a defense. There is simply no identifiable victim who would be able to give consent and thus legitimize the defendant's conduct. Or, put differently, the victim is the general public, and the general public has already spoken out by adopting a law proscribing the respective behavior.
Excerpted from Victims' Rights and Victims' Wrongs by Vera Bergelson Copyright © 2009 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
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