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

THE QUESTION OF TIMING is crucial for the defense of comparative liability. For how long did I give up my freedom of movement by consenting to staying locked up in my friend's apartment? What is the chronological window during which people may legitimately act in self-defense? Over what period of time does a provoker reduce his right not to be harmed by the person he has assaulted?

In most cases, the period of time during which the victim's rights remain limited is determined by the nature of his actions. If a person is negligent or reckless, his right not to get harmed may be limited for as long as his negligence or recklessness creates the risk of harm to himself or others. If the victim encroaches on another's right to life, his own right to life may be reduced for the time necessary for the target of his attack to defend himself. If a person has provoked another, he may be at risk of an aggressive response for as long as it takes a reasonable person to cool off. Despite the more or less clear conceptual framework, many questions remain intensely debated.

In this chapter I discuss three legal settings in which the issues of timing have been particularly contentious—living wills, post-penetration rape, and nonconfrontational killings. The first two involve issues of voluntary reduction or loss of rights, whereas the last one prompts a question of involuntary reduction or loss of rights by the victim.

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