Sometimes the Victim Is at Fault, Argues Professor Vera Bergelson in New Book on Comparative Criminal Liability
September 10, 2009 –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 (Stanford University Press, 2009), 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.
Professor Bergelson, who also carries the title Robert E. Knowlton Scholar, earned her J.D. cum laude from the University of Pennsylvania Law School, her Ph.D. in philology from the Institute of Slavic and Balkan Studies in Moscow, Russia, and her diploma in Slavic languages and literatures with distinction from Moscow State University. Before joining the Rutgers faculty in 2001, she was an associate with Cleary, Gottlieb, Steen & Hamilton in New York for six years. She teaches Criminal Law, Advanced Criminal Law, Punishment and Sentencing, Property, International Law, Property and Privacy, and the Moral Puzzles of Criminal Law.