Law Prof: Sometimes Accused Criminals Should Be Allowed to Blame the Victim

A criminal law professor at Rutgers School of Law-Newark has written a new book arguing that in some criminal cases, defendants should be allowed to blame the victim.

Law professor Vera Bergelson outlines her approach in a book called Victims’ Rights and Victims’ Wrongs, according to a press release.

“Considerations of fairness and effectiveness mandate,” Bergelson writes, “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 an e-mail to the ABA Journal, Bergelson said her approach doesn't apply to a situation where a rape defendant claims the victim enticed him.

"Obviously, when a woman wears a low-cut red dress or has a drink with a guy or kisses the guy, she does not lose or reduce her right not to be harmed," Bergelson tells the ABA Journal. There was no voluntary forfeiture of rights by the victim, Bergelson says, because "she neither consented to sexual violence nor assumed its risk (people may not be required to "assume the risk" of intentional wrongdoing); the worst risk she may be deemed to assume is of catching a cold or contracting the guy's herpes." Nor was there an involuntary forfeit of rights. "She did not violate any right of the guy--he has no right that she do not wear the low-cut red dress," Bergelson said.

On the other hand, a person who persuades a drunken friend to drive him home may be said to have assumed the risk of harm, Bergelson contends in her book. The person needing a ride voluntarily reduced his right not to be harmed, even though a car accident is not the intended result.

The press release says the book proposes a theoretical foundation for criminal law reform that addresses consent, self-defense and provocation.