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Provocative beliefs from a law professor in New Jersey argue that, in the interest of fairness and effectiveness, criminal law should be reformed to recognize that victims sometimes share a responsibility for their losses or injuries.
The maxim "don't blame the victim" is a cornerstone of Anglo-American jurisprudence. The law does not recognize victim fault as a defense to criminal liability, even when the victim is clearly a co-author of the suffered harm.
In her new book "Victims' Rights and Victims' Wrongs," Vera Bergelson, professor of law at Rutgers School of Law-Newark, criticizes the current approach and outlines a more fair, coherent, and efficient set of rules to recognize that victims sometimes share responsibility for their losses or injuries.
Evaluating several controversial cases involving euthanasia, sadomasochism, date rape, battered wives and "innocent" aggressors, Professor Bergelson builds a theoretical foundation for criminal law reform. Under such reform, each criminal episode would be viewed as an interaction of victim and perpetrator."Considerations of fairness and effectiveness mandate," writes Professor Bergelson, "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."
Professor Bergelson's approach to comparative criminal liability offers a unitary explanation for consent, self-defense, and provocation. Victims' Rights and Victims' Wrongs, described by Professor Heidi Hurd of the University of Illinois College of Law as "a work of breath-taking intellectual courage and honesty," provides a practical and coherent mechanism for evaluating the impact of a victim's conduct on a perpetrator's liability in a variety of circumstances, including those currently excluded from comparative analysis.
– NEWJERSEYNEWSROOM.COM
On a broader note, there is no place for codifying degrees of the victim's blame, which is a subjective matter that cannot and will not be made satisfactorily objective, in a legal system created to punish perpetrators.
In fact, there is a long discussion in the book of why by wearing a mini-skirt or even agreeing to a certain level of intimacy, a woman DOES NOT lose her right not to be subjected to unwanted sex. The reason is quite straightforward and follows from the theory advocated in the book: she does not lose that right simply because the attacker has no corresponding right that she do not wear a mini-skirt. Similarly, he has no right that she continue the intimate encounter as long as he desires. I further suggest that, if my theory is explicitly adopted, jurors would have a coherent way to distinguish a case in which the victim was at fault (attacked first or chose to participate in a drag race) from a case of date rape.
In short, it may be worth browsing through the book before discussing it.
The woman clearly lacks the ethical capacity to be even a human being, let alone a lawyer. And not to put too fine a point on it, but have you noticed that folks who are both stupid and vile of character, will only discover civil rights when they own is challenged? For instance, if someone could overpower this woman and rape her, causing great trauma, would she still advocate that she herself is to blame for what someone else chose to do? If not, you can add hypocrisy to her list of defects.
"I'm sorry your honor, but it wasn't my fault. They were asking for it. They were wearing a small brain." LOL!!
"But...if the argument is, "If you knowingly and willing agree to do something that ends up hurting you, you should carry some responsibility for your decisions, too," well...that does make some sense."
To some extent, I agree with that sentiment in theory. However in practice it usually devolves into excusing the perpetrator's actions for what he chose to do -- especially in categories of crime which are always difficult to prove such as rape where the majority of victims have historically suffered from a lack of justice with this exact same excuse. Her thesis completely ignores the genderized sexism and subsequent social conditioning which is still so common.
If you read the article again, she wasn't talking about accidental manslaughter cases involving auto accidents, she specificially singled out domestic violence and rape. Wierd, that a supposedly civilized society would prefer to hold a rape victim accountable instead of the perpetrator.
If that's what the argument *is,* then obviously, it's disgusting. But...if the argument is, "If you knowingly and willing agree to do something that ends up hurting you, you should carry some responsibility for your decisions, too," well...that does make some sense.
A delicate issue. I can't tell from this whether it's a good idea or not.
Sexual assault victims are violated by attacking thier most private and intimate body parts. When confronted with an imminent sexual assault, the victim does what they need to do to keep themselves from being badly injured or killed. Everyone responds differently to fear. To victim blame in either of these situations in totally ignorant. How could any educated person believe the content of this article. It makes me physically ill to believe Ms. Bergelson and Ms. Hurd think victims are to blame, especially since 70% of reported sexual assaults are commited by someone the victim knew.
The date rape thing is one of the perfect examples. It isn't a question of whether a person, who is given a date rape drug without their knowledge, ingests said product, it is a matter of the raper deciding whether or not to rape that person.
Governing S/M is a series of "honor" rules. Such as, if a safe word is uttered, the activities are stopped immediately. If a person passes out, the activities are stopped immediately. It is not a matter of whether or not pain is inflicted, it is a matter, if the "Dom" takes things just a bit far and the "Sub" says the safe word/passes out/etc..., and the "Dom" ignores the signal(s). If the word gets out, that "Dom" gets ostracized by the community. That isn't a written rule, but it is widely understood. Safety is the first concern, followed by pleasure.
Saying it is the victim's fault (in part) that they were attacked is one of the worst cop out answers ever given by any single person. I won't say they should be beaten, because I would be too tempted to reason my way out of punishment using their same excuse. "I'm sorry your honor, but it wasn't my fault. They were asking for it. They were wearing a small brain." By their own argument, they would be partially at fault for me nearly killing them for their stupidity. So I will not be beating them, because I know I wouldn't get away with it, and neither should anybody else.
As a date rape survivor who didn't think reporting was a possibility because of pervasive victim blaming, I understand that this tunnel vision of fairness disregards the victims being blamed and serves as a fence between them and justice. Some victims of sex crimes can scale that wall, but most who try find the effort futile.
I recognize that I would need to read the book to form a unbiased opinion. But, based upon the overall concept, I would be unwilling to support the book with a purchase. Perhaps if I steal one, it is really the author's fault for triggering this criminal instinct in me???