Victims' Rights and Victims' Wrongs: Comparative Liability in Criminal Law

By Vera Bergelson | Go to book overview

3

WHAT HAPPENS TO VICTIMS' RIGHTS IN SITUATIONS
OF CONSENT, SELF-DEFENSE, AND PROVOCATION?

IT IS GENERALLY recognized that the perpetrator's liability depends not only on an act of wrongdoing committed with certain culpability but also on a violation of some kind of a legal and moral norm. Most norms of criminal law are rights-based rather than duty-based;1 namely, part of what makes the perpetrator's act offensive is a violation of a victim's right—the more serious the violation, the more serious the offense.

Conversely, a voluntary act (whether intentional, reckless, or negligent) that harms the victim but does not violate his rights is usually not subject to criminal liability. For example, I did not invite someone to my party. That could happen by mistake, even an unreasonable, negligent mistake, or on purpose. The uninvited person may be harmed—his reputation and social status may suffer, he may lose out on certain career opportunities presented at the party, or he may endure a monetary loss because of the purchases and other expenditures made in anticipation of the party. Despite all of those harms, tangible and intangible, subjective and objective, I am clearly not liable for them, because I have not violated any legal right of that person.

With this in mind, let us revisit the theories of consent, self-defense, and provocation. What is common to all of them? In all three theories, the victim did something that abridged his right not to be harmed and, therefore, completely or partially justified the actor by eliminating or mitigating the actor's responsibility for the harm. This suggests a unitary explanation to the three theories, an explanation that takes into account actions of both the perpetrator and the victim. Moreover, this suggests a general principle of criminal law, the principle of conditionality of our rights, that needs to be recognized across

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