Righting Victim Wrongs: Responding to Philosophical Criticisms of the Nonspecific Victim Liability Defense

Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and indeed encouraged to be by society, vengeful. Others, however, advocate mercy and forgiveness as part of the process of closure, a process to which prosecutors and victim advocates often allude in justifying particularly severe punishments like the death penalty. The first article in this project, Victim Wrongs: The Case for a General Criminal Defense based on Wrongful Victim Behavior in an Era of Victims\u27 Rights, 77 TEMP. L. REV. 645 (2003), advocates as a response to the one-sided nature of victim characterizations a nonspecific victim liability defense. It proposes a general defense that mitigates punishment or exculpates defendants when their criminal behavior occurs in direct response to wrongful behavior on the part of the victim. The term, nonspecific, denotes that the defense applies to any criminal defendant who responds to wrongful victim behavior, under the specified conditions, as opposed to just murder or assault defendants. Nonspecific also captures the idea that wrongful victim behavior can include more types of behavior than the current specific laws take into account. The elements of the nonspecific victim liability defense are: (1) The victim of the crime engaged in sufficiently wrongful conduct; (2) The victim\u27s conduct caused the defendant to commit the charged offense; (3) The defendant was not predisposed to commit the charged offense; and (4) The severity of the victim\u27s wrongful conduct balanced against the severity of the defendant\u27s response dictates that the defendant\u27s actions were justified or excused or that punishment should be mitigated. This article is the second part of an on-going project to develop and justify the nonspecific victim liability defense by responding prospectively to potential criticisms of the defense based in penal theory. To that end, Part I of the article explains the importance of penological discourse in criminal law theory and introduces several broad categories of penal philosophy. Part II of the paper discusses the potential deontological criticism that the nonspecific victim liability defense inaccurately reflects sentiments regarding just deserts because of its potential to sanction victim negligence. In responding to this important objection, the paper distinguishes the non-specific victim liability defense from the seemingly analogous tort principles of contributory and comparative negligence. Part III briefly responds to consequentialist critiques of the defense, which involve concerns over deterrence, rehabilitation, incapacitation, and redistribution. In the end, this project hopes to recharacterize criminal law in a more transactional way so that criminal doctrines can account adequately for the relative moral culpability of all the parties to an injurious event