Victims and Perpetrators: An Argument for Comparative Responsibility in Criminal Law

Vera Bergelson, Rutgers Law School (Newark)

This paper is a "forum" paper to be published at 8 Buffalo Criminal Law Review accompanied by commentaries from Alon Harel, Douglas Husak, Heidi M. Hurd, and Kenneth W. Simons and a response to the commentaries by the author.


This article challenges the legal rule according to which the victim’s conduct is irrelevant to the determination of the perpetrator’s criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed.

Part I tests the descriptive accuracy of the proposition that the perpetrator’s liability does not depend on the conduct of the victim. Criminological and victimological studies strongly suggest that criminal liability may be properly evaluated only in the context of the victim-perpetrator interaction. Moreover, criminal law itself has a number of doctrines, such as consent, self-defense and (to some degree) provocation, which include victims’ actions in the determination of perpetrators’ liability.

Part II makes a normative claim that victims’ actions should reduce or eliminate the perpetrator’s liability in all appropriate cases and not merely in the context of a few distinct defenses. This claim draws on:

(a) the just desert principle which requires that individuals be punished only for the amount of harm caused by them and not by the victim himself;

(b)the efficiency principle, which requires that, in order to preserve the moral authority of criminal law, penal sanctions should not be overused and the law should develop in a dialogue with community perceptions of right and wrong;

(c)the consistency principle, which mandates that punishment-justifying considerations be applied systematically;

(d)the analysis of mitigating factors recognized at the penalty stage of a criminal trial; and

(e)considerations of fairness underlying the comparative liability reform in torts.

Part III proposes a basis for a theory of comparative liability in criminal law and suggests a method that makes it possible to distinguish between cases, in which the victim’s conduct should provide the perpetrator with a complete or partial defense, and cases, in which the victim’s conduct should be legally irrelevant. The author offers a unitary explanation to the defenses of consent, self-defense and provocation. That explanation lies in the principle of conditionality of rights. Pursuant to this principle, the perpetrator’s liability should be reduced to the extent the victim, by his own acts, has changed the balance of rights between him and the perpetrator. The victim can do that either voluntarily, by waiving a right not to be harmed, or involuntarily, by forfeiting this right as a result of his unjustified attack on some legally recognized rights of the perpetrator.

The article concludes with comparative analysis of factors that may affect the determination of the scope of the perpetrator’s liability. These factors include the magnitude of the affected rights of the perpetrator and the victim, the causative impact of their respective conduct, and their personal culpability.