by Vera Bergelson. Stanford, CA: Stanford University Press, 2009. 248pp. Cloth. $50.00. ISBN: 9780804755382. eBook format. $50.00. ISBN: 9780804772433.
Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. Email: cbanks6 [at] kent.edu.
According to VICTIMS’ RIGHTS AND VICTIMS’ WRONGS, the current status of criminal justice doctrine is contradictory, unfair, and inconsistent. The problem lies in conflicting rules of criminal liability that focus too much on the offender’s culpability without due consideration of the victim’s role in creating or exacerbating prohibited harm. Inattention to the victim’s blameworthiness, in turn, leads to the recognition of a body of legal rules that normatively remain incoherent and ultimately become indefensible (p.35). What is needed, instead, is a system and theory of comparative justice that accounts for the victim’s conduct in bringing about harm, even if it has the legal effect of eliminating or reducing the offender’s criminality. Bergelson envisions a synergy between offender and victim, where each shares legal responsibility for the negative consequences of their behavior. As she puts it, “If the victims voluntarily (by consent or assumption of risk) or involuntarily (by attack on legally recognized rights of others) change their moral and legal status vis-à-vis the perpetrators, the perpetrators should be entitled to a defense of complete or partial justification, which would eliminate or diminish their criminal liability” (p.3).
Multiple thoughtful and well-positioned examples serve to make the author’s case for reform. If two people opt to play the dangerous game of Russian roulette, and the decision to play it originates with the judgment of an 17 year-old offender, and it results in the fatality of a 13 year-old minor who voluntarily assumes the risk to play, under comparative liability there is no mitigation because the minor could not effectively consent to the risk, especially in light of the age differences between the two (pp.155-156). Yet, if the same game is played by three adults and one is killed, it is not clear the survivors should be convicted of manslaughter without first considering the decedent’s contributory negligence (pp.99, 101). In other words, in the latter instance “there are circumstances in which the requirements of fair and proportionate punishment mandate that the offender’s liability be evaluated in light of the victim’s own behavior” (p.38). Moralistic considerations, and a balancing of private and public interests, affect whether offender liability is reduced in other situations. A person who voluntarily consents to be killed and cannibalized does not exonerate the defendant from a murder conviction. While ending the victim’s life may be consensual, eating the victim implicates a larger societal, but objective interest which seeks to preserve human dignity. As such, “cannibalism by its very terms denies people of equal moral worth” (p.66) [*633] and, hence, disturbs higher societal interests that override the autonomous, personal decisions of victims to be eaten post-mortem. On the other hand, physicians that grant the wishes of terminally ill patients to die may present different circumstances and outcomes. Under the right conditions, an assisted suicide or mercy killing is justified on the grounds that it “respects and preserves” the victim’s dignity to die, provided the decision is a compassionate recognition of the victim’s agreement to not continue to live in a hopelessly vegetative state (p.67).
The variability of comparative liability and how it works in practice is the most challenging aspect of the proposed reform. Bergelson readily admits the theory is not a panacea (p.163). Even so, its viability can only be measured by the theory’s operative criteria and the legal expectations it creates. To that end VICTIMS’ RIGHTS AND VICTIMS’ WRONGS supplies benchmark principles and rules that collectively define the theory’s salience and application to different types of unusual and probably rare criminal cases. Such precepts are directed at prosecutions involving divergent facts, such as killings arising from the discovery of adultery, to drag racing, and to group rape; and to cases interposing a variety of defenses, including consent, self-defense, assumption of risk, and provocation. Despite the ubiquity of criminal law applications, the theory’s coherence remains grounded in a singular unifying “principle of conditionality of rights” (p.91). The precept dictates that a reduction in criminal liability is conditioned upon the extent to which the victim’s conduct diminishes the victim’s right not to be harmed by the offender (p.62). How the principle operates, then, depends upon what kind of legally-recognized rights the offender and victim had before the criminal act occurs; and, whether the victim’s rights are lost or reduced by voluntary action (p.62).
Several examples show how conditionality of rights distinguishes between permissible and impermissible conduct that ultimately becomes a legal and moral judgment of shared criminal responsibilities. Willing participants in a drag race that produces a death of one of the drivers through no fault of the others ought to have their criminal responsibility lessened (but not absolved) due to a balancing of interests. While it is unjust to hold the survivors to a higher degree of culpability (negligent homicide instead of a misdemeanor), likewise it is not in society’s interest to relieve them of any wrongdoing (p.104). Conditionality of rights, too, does not mean that a rape victim can be blamed, and the offender’s liability correspondingly reduced, if the victim wore sexy clothing or flirted with the rapist before the crime transpired. The victim did not consent or forfeit her right not to be physically violated in spite of her garb or suggestive behavior (p.105). In contrast, a reduction in liability is warranted if a death mistakenly results from the joint decision to engage in aggressive, consensual sex that neither party anticipated would lead to death; but the victim regardless assumed the risk of it by initially agreeing to choked to the point of passing out in the hope of achieving erotic sexual pleasure (p.103). No mitigation is called for, though, in a post-penetration rape case. Such an instance arises when a victim voluntarily consents to sex, but then changes her mind during intercourse and the offender [*634] refuses to stop performing the sex act in a timely fashion (p.107).
While none of these illustrations are necessarily cut and dried, the lines of criminal liability are etched by weighing different factors, including: whether the offender’s legal rights have been violated (and therefore the victim’s conduct offsets the defendant’s culpability) (p.142); whether the victim’s response to the offender’s actions is grossly disproportionate to the situation at hand (e.g. using deadly force in protection of property interests) (p.143); or, the victim has a direct role in causing the harm (pp.148-149). No comparative liability, as another illustration, is appropriate in a case involving the death of a kidnapping victim (who was brutalized and tortured) who took poison in order to end her torment. Due to the extent of her trauma, the cause of death could not be precisely ascertained. Still, the conviction for second-degree murder is valid because the offender denied the victim medical help in a situation where it could have been offered and the kidnapper is held to be responsible for putting her in a position of helplessness. Thus a duty to rescue is imposed and the victim’s decision to ingest the poison is irrelevant for comparative liability purposes (pp.150-151).
While the underlying premises of the reform are attractive, they remain, at their core, normative. It is far from clear how comparative criminal liability would work as a unifying principle in jurisdictions that are parochial but diverse in their governing norms and legal standards. In this light Bergelson concedes her theory cannot realistically deliver on the promise of turning “proverbial ‘hard cases’ that make bad law into easy ones” (p.163). Still, the book succeeds in challenging the notion (and perhaps the status quo) that infers victims have fixed rights and interests that automatically define, and thus determine, crime and sentencing decisions to punish offenders a certain way without first taking into account all of the facts that cause people to transgress. As a result, Bergelson suggests that such reflexive outcomes, along with their underlying penal code and sentencing rationale, result from poor policy decisions that are ill-advised and unjust. Therefore, the author’s research reminds us that a more nuanced view of shared criminal duties and responsibilities is warranted.
Accordingly, VICTIMS’ RIGHTS AND VICTIMS’ WRONGS is a provocative restatement of the conventional rules of criminal responsibility that continue to affect, and in some ways plague, the existing legal landscape. Its strength rests with the numerous and common sense illustrations it provides in detailing how the core principle of conditional rights and shared responsibilities can operate, or ought to work, in a myriad of criminal prosecutions that cry out for recognition of the victim’s blameworthiness if the law is going to be fairly and consistently applied. Its message will undoubtedly become the basis of extended class discussion and debates about whether it is practical or good public policy to implement Bergelson’s comparative criminal liability approach. As a result, students and instructors in undergraduate classes and graduate seminars in criminal justice, as well as in law and society courses, will find the book especially insightful and worthy of adoption.
© Copyright 2010 by the author, Christopher P. Banks.