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

By Vera Bergelson | Go to book overview

CONCLUSION

THE CRIMINAL LAW doctrine maintains that victims' conduct does not mitigate perpetrators' liability. However, upon close examination, this declaration is only partially correct. Furthermore, to the extent it is correct, it produces legal rules that are in direct conflict with fundamental principles of criminal liability, factual findings by social scientists, public perceptions of right and wrong, and developments in other areas of law. Considerations of fairness and effectiveness mandate that criminal law integrate victims into its theory of liability. If victims by their own actions have reduced their rights not to be harmed, defendants should be allowed to raise that as an affirmative defense at their trial.

In this book, I attempted to describe and apply the principle, which I believe to be a general principle of criminal law, the principle of conditionality of rights. This principle is a function of our collective living and our interaction with each other as citizens and individuals. As a principle, it is absolute: in any community, people should be entitled to go about their lives with the expectation that their rights will be respected by other members of the community, provided that they equally respect the rights of others. The implementation of this principle, however, may differ both historically and culturally. Law, and criminal law in particular, reflects moral and social norms of the community. It is, therefore, only to be expected that the scope of individual rights protected by the law and the comparative weight assigned to sp ecific rights may vary from country to country and may undergo transformation as the time goes by.

As it stands, American criminal law does not supply cohesive answers to many situations involving the interplay or conflict of individual rights. Some

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