CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, November 19, 2004

The Scholarly Case for a Broad "Wrongful Victim Behavior" Defense

Aya Gruber of Florida International has posted an interesting new paper on SSNR that was recently published in the Temple Law Review.  The following is an excerpt from the abstract to the article, titled, "Victim Wrongs:  The Case for a General Criminal Defense Based on Wrongful Victim Behavior in an Era of Victim's Rights":

"[T]he criminal law currently contains doctrines that absolve defendants of liability based on the conduct of the victim. Most obviously, self-defense exculpates a defendant for killing when the victim has engaged in imminently life-threatening conduct. Other victim liability defenses in the criminal law include provocation, defense of others, and defense of property. The problem is that there is no true doctrinal coherence in the existing victim liability defenses. They arbitrarily provide defenses to some defendants who respond to victim conduct and not others. Consequently, defendants who commit crimes, not because the victim is wrongful, but rather because the victim possesses certain minority traits disfavored by the defendant, are eligible for defenses under the current system. Current victim liability law often provides a pass to "reasonable racists," "provoked" wife-killers, and those who kill because of homosexual advances.

[T]his article proposes that the criminal law take a fuller view of victims and provides a coherent mechanism through which victim wrongdoing may be assessed at the liability level. The "non-specific victim liability defense" is a defense that applies to any crime. It requires that: (1) the victim engaged in sufficiently wrongful conduct; (2) the wrongful conduct caused the defendant to commit the charged offense; (3) the defendant was not predisposed to commit the charged offense; and (4) the defendant's response balances against the victim's wrongful conduct dictates that the defendant should be exculpated or punishment should be mitigated. This defense represents both a philosophical response to the privatization trend and a logical reformation of existing law. It solves some of the difficult race and gender problems of current victim liability law because it is more prescriptive than descriptive: It requires that the defendant respond to wrongful victim conduct. The defendant is subsequently prevented from asserting the defense if his criminal conduct was based, not on wrongful conduct, but on his own patriarchal, homophobic, or racist belief system."  [Mark Godsey]

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